Wendy Davis reports:
A federal judge has ruled that the bulk of a privacy lawsuit against the Internet service provider Wide Open West should go to arbitration.
Wide Open West was among six Internet service providers that partnered with controversial behavioral targeting company NebuAd in 2007 and 2008 to test its ad-serving platform.
Read more on MediaPost. This seems to be another case where an arbitration clause in Terms of Service has been enforced and has come back to bite consumers.
So let’s review: no one reads privacy policies, and some courts recognize that, but when it comes to arbitration clauses buried even deeper in legalese, the courts think those should be binding? Why do they think that a public that doesn’t read privacy policies will read Terms of Service?
Of course, at some point, you get to the, “Well, don’t enforce any contract because ya know, I actually didn’t read it.” But where should the line be?
And is it inherently unfair to consumers to require arbitration on the firm’s home turf? I don’t know how many of my readers have ever been through by arbitration, but I have, and it left me with a very sour taste in my mouth. The firm’s representatives greeted the arbitrator cordially, like old friends, thereby immediately trying to set me up as an “outsider.” They already knew each other, but I didn’t know any of them. The arbitrator conducted himself professionally during the hearing, but after we all left and I realized I had left something in the room, I came back — only to find them all in an ex-parte conversation. I walked out of there, looked at my husband, and said, “I will never go through arbitration again.” And that’s before we even got the decision, which allowed the dealership to use rebuilt parts to fix my defective new car.
But I’ve meandered. The point is that most of us are unprepared for arbitration and we are unlikely to get significant legal help if lawyers do not have the carrot of fees in a big class action lawsuit. The Wide Open West decision is not precedent-setting in any way, but it reminds us that in a digital world where we do business with many firms located in other states, our means of redress may be more limited that we’d hoped.