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23andMe updates their TOS to force binding arbitration

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Re: 23andMe updates their TOS to force binding arbitration

#191

Post by mminer237 »

justinpombrio wrote: post #98
mindvirus wrote: post #6

"If you have not notified us... you will be deemed to have agreed..." Is changing the terms of a service agreement with no confirmation/acceptance from the user even legal or enforceable?

My understanding is that courts haven't even tested if terms of service are enforceable, never mind sudden updates to them.

The absolute limits of terms of service aren't clear, but there have been tons of cases about website/software terms of service. A quick search of Westlaw finds hundreds of reported cases in my state alone. There are certain things like binding arbitration that courts have found unconscionable to be in a clickwrap agreement[0], but generally terms of service have been found fully enforceable. There's definitely been a lot of court testing.[1]

[0]: https://www.faegredrinker.com/en/insights/publications/2022/...

[1]: https://www.goodwinlaw.com/en/insights/publications/2022/08/...

Re: 23andMe updates their TOS to force binding arbitration

#192

Post by orbisvicis »

deckeraa wrote: post #7

The more TOS I read through, the more it seems we need a "common law" solution. (I use the term "common law" loosely here) Something like a couple of pre-defined categories for software services (e.g. info provider, social network, real-world interface) with pre-set rules (e.g. the client cannot attempt to break the social network; the owner of the social network cannot re-sell data to a third party). We have somethi…

It's not like we don't have cultural admonishments against this type of behavior - take Rapunzel for example.

* Walled garden of the sorceress equivalent to corporate walled garden.

* Rapunzel (the leafy green) representing either a life-saving service or unquenchable greed of the consumer. By holding the genetic health of future children hostage, The 23andMe connection is particularly apropos - the sorceress holds Rapunzel hostage.

* The husband agrees to a ToS in exchange for rapunzel (the leafy green).

As the story unfolds the consequences reveal themselves...

Re: 23andMe updates their TOS to force binding arbitration

#193

Post by gpderetta »

concerned_user wrote: post #150
that_guy_iain wrote: post #112

Earlier quoted context omitted.

> There are plenty of European countries which already have some laws like these. When I buy something on the internet, I have 14 days to return it if I don't like it. I am guaranteed to have a reasonable warranty. Companies cannot abuse my personal data without explicit consent. And indeed, forced binding arbitrage is also not allowed. This is because of EU laws. A lot of the best laws we have in European countries…

You are correct, I can not find where arbitration is forbidden in the directive also it is quite the opposite. I think in this particular case we are talking about Directive 2011/83/EU of the European Parliament and of the Council on consumer rights. Article 6(1) (t) where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods…

ADR is not forbidden. But it is regulated by 2013/11/EU [1]. In particular:

" (43)

An agreement between a consumer and a trader to submit complaints to an ADR entity should not be binding on the consumer if it was concluded before the dispute has materialised and if it has the effect of depriving the consumer of his right to bring an action before the courts for the settlement of the dispute. Furthermore, in ADR procedures which aim at resolving the dispute by imposing a solution, the solution imposed should be binding on the parties only if they were informed of its binding nature in advance and specifically accepted this. Specific acceptance by the trader should not be required if national rules provide that such solutions are binding on traders."

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A...

Re: 23andMe updates their TOS to force binding arbitration

#194

Post by randomdata »

acdha wrote: post #160
mcpackieh wrote: post #138

Earlier quoted context omitted.

> Until your country actually implements laws like these and Hacker News starts complaining that it is "business hostile" and "stifling innovation". Literally, so what? I don't understand your point. You can't be under the impression that all laws must be popular with all people, so what does it matter if some ancrap libertarians complain about it? This shouldn't stop the implementation of such laws.

It’s more than “so what” because those people aren’t coming from nowhere. American businesses spend a lot of money promoting libertarianism to this end, and it’s been effective enough that any reforms will face unified opposition from every Republican in Congress and likely some Democrats. Most of these are minority positions in the public but not in terms of legislative votes.

> American businesses spend a lot of money promoting libertarianism to this end

American businesses would be the first one crying if they had to operate in a libertarian environment. In reality, they spend a lot of money to ensure heavy regulation that allows them to build moats.

Re: 23andMe updates their TOS to force binding arbitration

#195

Post by mminer237 »

CrendKing wrote: post #55

What prevents 23andMe from simply deleting the opt-out emails they receive and claiming they never received anything, in case someone did sue them?

The sender could simply show in his outbox that he did send such and 23andMe would be in even worse legal trouble then?

Re: 23andMe updates their TOS to force binding arbitration

#196

Post by that_guy_iain »

gpderetta wrote: post #193
concerned_user wrote: post #150

Earlier quoted context omitted.

You are correct, I can not find where arbitration is forbidden in the directive also it is quite the opposite. I think in this particular case we are talking about Directive 2011/83/EU of the European Parliament and of the Council on consumer rights. Article 6(1) (t) where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods…

ADR is not forbidden. But it is regulated by 2013/11/EU [1]. In particular: " (43) An agreement between a consumer and a trader to submit complaints to an ADR entity should not be binding on the consumer if it was concluded before the dispute has materialised and if it has the effect of depriving the consumer of his right to bring an action before the courts for the settlement of the dispute. Furthermore, in ADR proc…

And some countries such as Germany the ADR clause has to be separate from the main contract.

Re: 23andMe updates their TOS to force binding arbitration

#197

Post by TheRealDunkirk »

Thanks for reminding me that I needed to cancel my account. I should have done it years ago when they announced they were being bought out by private equity, and before the inevitable security breaches. Oh well, better late than never, I guess.

And, before the "why did you ever do this?!" replies, my wife really wanted to do it, all the way back when they first started, and I relented. Our common 0.3% "sub-Saharan African" results is still a running joke.

Re: 23andMe updates their TOS to force binding arbitration

#198

Post by mminer237 »

4death4 wrote: post #25

Have terms of service ever successfully been challenged for failing to meet the requirements of a contract? Like if I make an Uber account for my mom, and she uses it, at what point is she bound by the ToS?

Ordinarily, ToS do meet all the requirements of a contract. Both sides assent to certain promises. They make an offer of the terms and you accept it by checking the box or whatever like they ask. That's what a contract is: https://matthewminer.name/law/outlines/1L/1st+Semester/LAW+5...

Even where you don't make the account, a court would assumedly find she agreed to the contract by virtue of quantum meruit by consenting to have you make it and her continuing to use the account.

If you sign your mom up for a credit card in her name, what makes her have to repay the debt if she uses it?

Re: 23andMe updates their TOS to force binding arbitration

#199

Post by orangepurple »

cjrp wrote: post #131
logifail wrote: post #117

Earlier quoted context omitted.

> When I buy something on the internet, I have 14 days to return it if I don't like it One (unintended?) consequence of this is that as a consumer, you cannot buy an annual digital motorway toll pass in Austria with immediate validity. The earliest your pass can start from is 18 days from the date of purchase. "Customers can withdraw from the online purchase of a digital vignette within 14 days. Taking into account a…

Can't the rental car companies sell you a physical vignette when you pick up the car?

You can always buy a physical sticker at the gas stations near the border

Re: 23andMe updates their TOS to force binding arbitration

#200

Post by ponderings »

Detrytus wrote: post #140
logifail wrote: post #117

Earlier quoted context omitted.

> When I buy something on the internet, I have 14 days to return it if I don't like it One (unintended?) consequence of this is that as a consumer, you cannot buy an annual digital motorway toll pass in Austria with immediate validity. The earliest your pass can start from is 18 days from the date of purchase. "Customers can withdraw from the online purchase of a digital vignette within 14 days. Taking into account a…

Some online services simply ask you to wave your 14-day return right if you want to start using the service immediately. Not sure why they won't do this in this case.

In NL you don't get your 14 days on remote purchases when it doesn't make sense. You cant purchase a game play it and return it. You cant eat the food. You cant wear the dress etc

If the 14 days do apply you have to inform the customer about it or it turns into 12 months.

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