When PayPal wanted to change a fundamental term of its contract on Sunday (Oct. 21), it communicated with its customers electronically, using E-mail and its Web site. But if consumers wanted to communicate about that change to PayPal, well, for some reason, 21st Century forms of communication were just inadequate. PayPal insisted on a more, shall we say, 6th Century BCE form of communication—a written and signed letter mailed or couriered to a specific physical address. If this seems fundamentally unfair, that's probably because it is.
Most relationships between retailers and shoppers are dictated by some form of contract, typically online. This may be true even for purchases made in brick-and-mortar stores, as courts increasingly look to the online contract to determine the rights and responsibilities of parties even if the consumer never went online. But online contracts present a problem for merchants: How do you change them?
PayPal recently wanted to fundamentally change its relationship with its consumers by requiring them to forever give up their rights to sue PayPal individually or in any class action and to instead "agree" to binding arbitration. A pretty big deal. PayPal E-mailed the new agreement to its customers and put it on the company's Web site. If you do nothing, voilà! You have agreed to arbitrate and waive your rights (and a bunch of other things). If you want to preserve the rights you already had, the PayPal terms state that you have to haul out your typewriter, find a piece of paper, type PayPal a letter, sign it, find an envelope, address and put a stamp on it, and then mail it to PayPal in San Jose. (OK, I made up the typewriter part.)
But the mechanism PayPal chose for consumers to continue to preserve a fundamental right was specifically designed to deter them from preserving their rights and, essentially, to force them to agree to the new terms. It's not clear that a court would require consumers to jump through hoops to essentially not agree to changes to a contract, particularly where all other communications between the parties are electronic. Why make it so hard to agree?
The PayPal contract changes, effective November 1, do a lot of things—some big, some small. Those chances allow PayPal and any of its "family of companies" (including ebay) to record your telephone calls, even if you live in a state that doesn't permit such recordings. Why? Because the Web site says you have now "consented" to the recordings—whether you read the Web site or not. No more warning, "Your calls may be monitored for 'quality assurance.'" The changes allow PayPal or any of its "family" to robocall not only you but any telephone number you "provide" to PayPal. Oh, and you "provide" that number simply by calling PayPal from that number, even if you have registered on the "do not call" registry and do not want these robocalls.
But the most important change is the waiver of the right to sue. Two years ago, in a case called AT&T Mobility v. Concepcion, the Supreme Court held that mandatory arbitration agreements and waivers of class-action litigation and arbitration could be binding if they were agreed to. There are many advantages to arbitration, some even to consumers. Arbitration is meant to be a cheaper, faster, more efficient way to resolve disputes between the parties. It is essentially a "private justice" system. But it means there are no more class-action cases, no more publicly reported trials, almost no discovery or disclosure of corporate business practices, limited damages or statutory damages, and a greater likelihood that the arbitrator—who may depend for his or her livelihood on continuing to be "picked" by the company as an arbitrator—be more biased than an appointed judge. So a decision to waive the constitutional rights and protections of trial or jury trial should not be entered into lightly by consumers.
PayPal could have forced the arbitration agreement down the throats of consumers. It could have said, "If you don't want to waive your right to trial, class action, discovery and a real judge, find another way to pay for things." In fact, that's the usual way of doing business. If you want a cell phone from AT&T, you have to waive these rights. You want Internet or phone or TV service from Comcast, arbitration is required. Find another provider—if you can. But PayPal wants to retain all its customers, so it created an "opt-out" procedure. PayPal's Web site says explicitly that you can do so, noting:
You can choose to reject this Agreement to Arbitrate ("opt out") by mailing us a written opt-out notice ("Opt-Out Notice"). You must mail the Opt-Out Notice to PayPal, Inc., Attn: Litigation Department, 2211 North First Street, San Jose, CA 95131.
The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, phone number, and the E-mail address(es) used to log in to the PayPal account(s) to which the opt out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the User Agreement, including all other provisions of Section 14 (Disputes with PayPal), will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other or future arbitration agreements that you may have with us.
OK. So what's so bad about this?OK. So what's so bad about this?
The same contract also includes PayPal's Electronic Communications Delivery Policy, which says:
You [the consumer] agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your PayPal account ("Account") and your use of our services.
The Electronic Communications Delivery Policy also requires the consumer to have a computer, Internet connection, browser, Acrobat Reader, valid E-mail address and sufficient storage to retain communications or a printer to print them. So failing to have Acrobat Reader is a breach of the PayPal contract. And it's also breach when opting out of the Electronic Communications policy by writing to PayPal or by clicking the "Contact Us" link on the Web site.
So PayPal wants to communicate with consumers electronically about everything. But if consumers want to preserve their rights, their can't communicate with PayPal electronically.
It seems that PayPal is deliberately making it difficult for consumers to opt out, by making them jump through unnecessary hoops. Clearly, PayPal knows how to communicate electronically. Once consumers have logged into its system with a user ID and password, they have authenticated. The federal e-SIGN law 15 U.S.C. 7001 recognizes that an opt out using a click on signature is as legally binding as a written piece of paper. Indeed, it is likely that someone in San Jose will have to take these written opt-out documents and input them into a digital database so lawyers representing PayPal can check them whenever a lawsuit is filed to see if the plaintiff is on the opt-out list.
So if you don't want to agree to a specific change to your rights, you have to send a signed snail-mail letter with specific information to PayPal at a specific address. But if PayPal wants to change its contract, all it has to do is post something online. Oh, and you have to send it within 30 days. Hardly seems, well, fair.
And that's the point.
As a retailer engaged in E-Commerce and electronic contracting, sauce for the goose has to be sauce for the gander. It smacks of unfairness to say that we can communicate with you cheaply, effectively and electronically, but that you have to communicate with us in writing—and that writing has to be sent as ink on dead trees, with a stamp, to a particular address, and it also has to have a signature, or we can ignore it.
Ordinarily, parties to a contract can dictate the method of acceptance of a contract. I can say, "If you want to accept this contract, you must call me at xxx number before 4:00 PM Tuesday." But this is different. PayPal is saying that you accept the new contract unless you do something—and something very specific. My personal opinion (and reasonable minds may stdiffer) is that, if PayPal was provided actual notice that a consumer wanted to opt out of the arbitration agreement and used a "normal" means of doing so (e.g., normal E-mail or electronic communications, not simply waving a banner saying, "I opt out"), PayPal would be hard pressed to argue that it had a right to ignore the opt out because it wasn't sent the "right way."
Look, changing online contracts in a way that's fair to both parties is not easy. Consumers don't read these things, or mostly don't care about them until there's a genuine dispute. Sending an E-mail (especially from E-mail addresses like PayPal, which are frequently used by spammers and destined for the E-mail trash heap) or posting on a Web site doesn't really constitute the type of "meeting of the minds" that contract law looks for, even though these procedures are almost universally accepted by courts. So this is as much about fairness as it is about the law. If you are going to make a significant change to terms of service and if you are going to allow consumers to opt out, provide a reasonable way for them to do so—one that is similar to the way you normally communicate with them. An "opt-out" link, or a "contact us" link, or even an E-mail address to opt out would be reasonable. In 2012, requiring ink on dead trees with a scrawl probably is not.
If you disagree with me, I'll see you in court, buddy. If you agree with me, however, I would love to hear from you.