Last week the BBC reported that a clause had been included in PSN’s new Terms of Service called the “Binding Individual Arbitration”, which states that “any Dispute Resolution Proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action”.
According to the report, users would have to agree to the new Terms of Service before they can log onto their PSN account. A pop-up message appears on the screen just before they login to PSN. Those who want to opt out of the agreement can do so by sending a letter to Sony’s Los Angeles headquarters in the US. Once they do, subscribers will be able to keep their right to file a class action lawsuit without any need for arbitration.
A Sony spokesperson confirmed that the Terms of Service for Australian PSN users have not changed.
“Although the Terms of Service (TOS) in the SCEE (Sony Computer Entertainment Europe) region have not been changed, in the regions where they have, this updated language is designed to benefit both the consumer and the company by ensuring that there is adequate time and procedures to resolve disputes. There is also a section of the TOS that educates users on how they can opt out of this portion of the TOS,” the spokesperson said.
“As Australia is part of SCEE therefore there is no change to the TOS.” [BBC]
weresmurf
Tuesday, September 20, 2011 at 9:38 AMI don’t know if that’s actually legally possible. They can SAY it, they even request it, but as for making it happen… it’s up to the individual how they sue or proceed on court action?
Edward
Tuesday, September 20, 2011 at 9:42 AMAs the EULA isn’t legally binding it cannot be enforced.
What it does do however allows a method of lowering the number of class action law suits.
And lets face it, these changes seem only to be in America which is sue-happy.
weresmurf
Tuesday, September 20, 2011 at 9:47 AMIndeed, EULA’s are essentially just chest thumping, not a lot of people realise that they’re not as legally binding as companies would have them believe.
James
Tuesday, September 20, 2011 at 12:28 PMNote that some EULAs can also give you more rights than you otherwise would under common law.
While you might be successful at claiming the EULA is unenforceable, that might just turn your actions into plain copyright infringement if the EULA was the only thing allowing you to do that action.
Trjn
Tuesday, September 20, 2011 at 9:52 AMOnly some forms of EULAs are not binding. It’s a tricky area (for example you can’t be bound by an EULA that’s in a sealed package that says you agree to it by purchasing).
Unfortunately, this particular bit will probably work in America. There was a recent court ruling that allowed for companies to deny their customers access to class action suits and odds are many companies are going to exploit that.
I honestly don’t know how America has got to this point, where consumers have basically no rights. We may think the ACCC is a toothless tiger, but at least we’re not being bound, gagged and told that we have purdy mouths.
weresmurf
Tuesday, September 20, 2011 at 9:59 AM*shudder* For that Trjn, I’m going all Burt Reynolds survivalist on your ass…
Matthew K
Tuesday, September 20, 2011 at 10:04 AMI know a guy who practices law in the US and at first glance he says it’s probably legally binding. Which is funny because he’s the PS3 guy in our little community and everyone makes fun of him because we all prefer our Xboxes.
Sam
Tuesday, September 20, 2011 at 10:06 AMCyberpunk is coming baby! Fight the all powerful corporations!
NegativeZero
Tuesday, September 20, 2011 at 10:22 AMUnfortunately for our American counterparts, in the US this sort of thing *is* enforceable, depending on the state that the proceedings are in. In the case of Sony, that’s going to always be California, and I believe there are previous cases in which this sort of clause in a EULA has been held up there.
Pretty sure it’s completely illegal in Australia though. No contract cannot sign away any legal rights you have, or at least that’s how I understand it to be (I am obviously not a Lawyer)
DG
Tuesday, September 20, 2011 at 9:46 AMisn’t it “effect” ?
Tracey Lien
Tuesday, September 20, 2011 at 9:48 AMNope.
DG
Tuesday, September 20, 2011 at 9:51 AMI always get them confused ^_^
Also there are laws put in place, in australia at least that stop you signing over your rights.
Basically there stupidity laws that prevent you from relinquishing your rights even if you volunteer to.
Techa
Tuesday, September 20, 2011 at 8:05 PMWho cares if there’s laws in place, we don’t have class action lawsuits in the first place.
PrettyTones
Tuesday, September 20, 2011 at 9:49 AMShould’ve been ‘Mass Affect’ too :p
DG
Tuesday, September 20, 2011 at 9:57 AMlol – I dont think i would of played a game called “Mass Affect”
Reoh
Tuesday, September 20, 2011 at 1:37 PMAhhh English, weirdest language on the whole damn planet.
Raider
Tuesday, September 20, 2011 at 1:42 PMgrr… ‘would have’. sorry DG, it’s a pet peeve of mine.
andy
Tuesday, September 20, 2011 at 3:05 PMyes but they are using it as a noun and therefore it is mass effect. if they used it as a verb in the name it would be affect
Ash
Tuesday, September 20, 2011 at 11:38 AMYou’re ‘affected’ by an ‘effect’.
… or is it the other way around? *scratches head*
McGarnical
Tuesday, September 20, 2011 at 1:35 PMThe only thing that effected Australia as we know it was the British Empire.
(Not trying to start historical argument here. Just being a smartarse.)
Matthew K
Tuesday, September 20, 2011 at 10:02 AMI’m pretty sure we can’t waive our right to seek damages if damages are incurred by Sony. We can waive our right in regards to a specific incident, but we can’t just discharge ourselves from having any capacity to ever take action under common law.
A class action lawsuit is just an extension of that privelege.
Techa
Tuesday, September 20, 2011 at 8:04 PMThey still can seek damages through arbitration, all this is stopping is class action lawsuits.
RocK_M
Tuesday, September 20, 2011 at 10:28 PMThe new ToS doesn’t actually make you waive the right to seek damages.
What it does do is make you waive the option to seek damages via Class Action. And there in lies the problem.
While I’ve never been a big fan of the sue happy culture US sometimes promotes in some instances because of the way US law can favour the corporation over the individual only a Class Action can be the only case where it would be an even field.
Koppenflak
Tuesday, September 20, 2011 at 10:02 AMYour right to sue someone for negligence cannot be waived in Australia.
Doesn’t matter what piece of paper they put in front of you, or get you to sign, you can never actually sign away your right to sue for appropriate compensation.
In a lot of cases, it’s a stupid waste of legal time (Ever noticed the massive increase in advertising from Lawyers who’d like you to hire them for ‘Compo’?) but in cases like this, with Sony being the corporate butt-hurts they are, it does make me smile.
:)
Matthew K
Tuesday, September 20, 2011 at 10:14 AMAs a liability claims officer, there are three things that piss me off:
Shine
Slater & Gordon
Brydens
I recently saw an ad for Slater & Gordon and my hands curled into fists when they threw that “we maximise your compo!” tagline on their ad.
I’m gonna be honest – that’s basically false advertising. The calculation of quantum in a liabiltiy matter is pretty strictly regulated. There are a lot of different ways someone with a serious injury can SEEK compensation, and Slater & Gordon basically have a giant ass checklist. Instead of picking and choosing, they just copy-paste on every single matter. They’ll tell their client that they’ll get some ridiculous sum for a minor injury and, assuming there’s even a liability, it’ll probably settle for 20%-40% of what S&G were aiming for. Then they take their cut for fees, another cut for medical reports, another cut for god knows what.
What they’re good at is dragging a case into court to maximise their paycheque. Whether the client actually takes home any money is none of their concern. Once a liability case goes to trial, you’re looking at $10,000 a day to keep it running.
attila
Tuesday, September 20, 2011 at 10:32 AMAnd this ladies and gentlemen, is why you don’t look to Kotaku commentators for legal advice…
Tracey Lien
Tuesday, September 20, 2011 at 10:47 AMI get *all* my legal advice from the Kotaku comments.
Trjn
Tuesday, September 20, 2011 at 10:53 AMWhich reminds me, that thing I said about the bears and the butchers may have been slightly incorrect. My counsel is that you better call Saul.
FeralJim
Tuesday, September 20, 2011 at 11:41 AMSaul Goodman? His your man for this sort of work. The kind of high-flying no nonsense negotiation needed to bring down the big corporations. Deus Ex Machina style.
Matthew K
Tuesday, September 20, 2011 at 11:12 AMWhat’s important is that we get legal advice from SOMEWHERE.
attila
Tuesday, September 20, 2011 at 11:22 AMTo be clear, I was referring to Koppenflak, and his (or her) ahem, unique, take on the validity of exclusion clauses under Australian law.
Koppenflak
Tuesday, September 20, 2011 at 11:36 AMI suggest you look up the term “Mitigation”
Koppenflak
Tuesday, September 20, 2011 at 11:44 AM…Also worth mentioning that classifying an EULA as a “Contract” is tenuous at best. Exclusion can only apply to a legal contract.
McGarnical
Tuesday, September 20, 2011 at 1:37 PMLooks like you’re copping some flak there, um, Koppenflak.
attila
Tuesday, September 20, 2011 at 1:53 PMIts also worth mentioning that I was referring to your post which made no reference to EULA’s, merely the at large claim that you can’t waive your right to sue someone for negligence in Australia – a claim which is, to put it bluntly, utterly wrong.
McGarnical
Tuesday, September 20, 2011 at 2:40 PMI’ve got a friend and he knows a guy who says this is bullshit and won’t work.
Patrick
Tuesday, September 20, 2011 at 2:54 PMI know a guy who knows a guy who almost met a guy while bowling who says it’s legit.
Koppenflak
Tuesday, September 20, 2011 at 2:55 PMCorrect within the context of a discussion. I’m sorry if I don’t have time to sit there for 5 minutes at work while I put forward an ironclad case. EULAs are not legally binding documents, and absolutely nothing Sony puts in front of you to the effect of an “End-User Agreement” can waive your right to hold them to account for negligence.
Techa
Tuesday, September 20, 2011 at 8:05 PMYou’re wrong, it’s already worked for AT&T doing the same thing and held up in court.
Neil78
Wednesday, September 21, 2011 at 5:44 PMTecha – absolutely. In the US. That’s largely the point of this article: that kind of things just doesn’t wash in Australia, Europe or, indeed, most of the world.
Note, though, that there are three issues – the validity of the EULA (in general), the conspicuousnous of the clause in the EULA and the legality of the clause.
Koppenflak, right or wrong is arguing the first point – the validity of EULAs (any EULA). Your reply is concerned solely with the third point – the legality of getting users to waive their rights.
The simple question to ask is – if it was legal in Australia (and Europe) then why didn’t Sony add the clause to the EULA? It isn’t so they didn’t. If I understand correctly (and likely I don’t,) then adding these clauses to the Australian EULA may even be considered illegal in itself as it would be an attempt to mislead customers as to their true rights. Well, that is the way it works in retail – you can’t, for instance, put up a big sign saying ‘No refunds’ as customers have a statutory right to refunds in certain circumstances. It would be silly, but by no means surprising, if there wasn’t a parallel in the case of EULAs.