An Empirical Study of Predispute Mandatory Arbitration Clauses in Social Media Terms of Service Agreements
46 Pages Posted: 21 Apr 2012 Last revised: 22 Dec 2012
Date Written: August 14, 2012
By incorporating predispute mandatory arbitration clauses into their terms of service, a large and growing number of social networking sites (SNSs) are divesting users of their rights to civil recourse against providers who violate their privacy, commit torts, or infringe their intellectual property rights. SNS users around the world are required to agree to predispute mandatory arbitration as a condition of joining social networking communities. Consumers that enter into clickwrap or browsewrap terms of service agreements waive their right to a jury trial, discovery, and appeal, without reasonable notice that they are waiving these important rights. The U.S. Supreme Court’s arbitration jurisprudence has made it difficult for consumers to challenge these unfair and deceptive contractual clauses and practices. The Roberts Court’s latest decisions, including AT&T Mobility, LLC v. Concepcion and CompuCredit Corp. v. Greenwood, make it clear that the Court favors a broad enforcement of consumer arbitration agreements strip-ping the state and private plaintiffs of the ability to police these documents. These decisions are, in effect, a federal takeover of arbitration, preventing the states and private plaintiffs from challenging one-sided and oppressive consumer arbitration clauses. This Article is the first empirical study of the use of predispute mandatory arbitration clauses by SNSs and sheds light on whether SNSs are using arbitration clauses strategically in order to complete a “liability-free” zone in cyberspace. Our empirical findings reveal that SNS arbitration clauses contravene many of the basic principles deemed indispensable for a fundamentally fair process for consumers to obtain civil recourse for recognized torts and remedies for contract disputes. Congress needs to prohibit predispute mandatory arbitration clauses in terms of service agreements and privacy policies.
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