Sony Sneaks Class Action Clause into Mandatory PS3 Update

Someone needs to send Sony the book "How to Win Friends and Influence People" because the company clearly isn't getting it. We can point to the whole rootkit fiasco, but who needs to look back that far when Sony's shenanigans never seem to stop? Following that big mess with the security breach to its PlayStation Network (PSN), Sony is trying to force PS3 owners to waive their rights to join a class action lawsuit, even if such a request might not be enforceable.

Here's what you'll find nestled in the latest mandatory system update:

ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.

You read that right. Sony is saying you can't enter into a class action lawsuit unless they agree to let you, though the firm graciously states if you filed one prior to August 20, 2011, you may proceed. Gee, thanks.


So is that all there is to it? Not exactly. You can decline the new ToS and Sony will nuke your account and return any money you have sitting in it, but that seems rather drastic. The other option is to opt-out of the new clause, but you can only do that by sending a letter:

IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.

What's funny about this is that Sony even acknowledges it's not sure this sort of thing is legal in the first place. Toward the end, Sony ditches the all-caps and states:

If any clause within this Section 15 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 15,and the remainder of this Section 15 will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be unenforceable, and the Dispute will be decided by a court and you and the Sony Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.

Sony isn't the only company to include a clause like this, but whether or not Sony or anyone else would be able to enforce it is another question entirely. Regardless, if you do decide to write Sony a letter and opt-out, be sure to send a Certified letter.