Discord updates terms of service to force arbitration over lawsuits

Discord has issued an update to its terms of service that will affect any future lawsuits brought about by users, including class-action lawsuits.

The added sections to the terms of service, entitled "Dispute Resolution" and "Class Waiver" require that any disputes with Discord be resolved through binding arbitration rather than a court complaint. In addition, the terms now prohibit class action lawsuits. Both sections take effect with the new terms of service on October 23, 2018.

The new terms include an opt-out right for the Dispute Resolution segment, allowing users to opt out of the section of the terms requiring arbitration by emailing "arbitration-opt-out@discord.com" within 30 days of the terms of service taking effect or the creation of the user's account. The opt-out does not seem to apply to the section on class action lawsuits.

A Discord representative posting on a Reddit thread discussing the change offered a detailed explanation for the change, suggesting that the push for arbitration was to prevent "frivolous class actions."

"I want to be clear that we're not doing this to dodge responsibility for anything," the representative said. "We believe in doing right by you, and we take feedback into account (see the recent Nitro Classic changes). The reason that there's a arbitration agreement in our Terms of Service is that there have been a continuously increasing raft of class actions and firms that look for companies that are susceptible to class actions. When class actions are successful, the lawyers get millions, and each user gets, on average... anywhere from ten cents to a couple dollars. Sometimes tens of dollars! Maybe a free rideshare (I don't remember this case, but I think I got one of these recently)."

Update: In a blog post, Discord has outlined the reasoning behind this change, saying it was added as a part of the service's transition from a chat service to a game store and for-profit subscription service. In general, the blog post lines up with the statement shared above, with Discord expressing concerns regarding the "legal climate" in the US.

In addition, the blog post outlines that the clause has been modified from its state yesterday (when we first posted this news) in two ways. The first is that it now only applies to US users. The second is that Discord has extended its opt-out period from 30 days to 90, in response to feedback that users were not adequately made aware of the change.

"We think that people can disagree on whether or not arbitration is good in general or whether or not the class action system is one that is beneficial; we don't think it's completely black and white," reads a portion of the post. "In fact, we're very interested in how Europe is approaching implementing class action lawsuits, as their approach may mitigate the issues that the United States faces with them.

"Because we don't think it's black and white, one of the things that we've implemented (which some of our competitors do not), is to allow you to opt out of this clause completely. We encourage you to opt out if you wish. You won't be penalized in any way if you do so. At no point will we ever gate any features or take any action on users because they've opted out of arbitration."