The Washington PostDemocracy Dies in Darkness

Opinion NYT exposed the ills of forced arbitration. It’s now a company policy.

The headquarters of the New York Times in Manhattan. (Julia Nikhinson/AP)

Few outlets can match the New York Times when it comes to exposing the pitfalls of forced arbitration. A 2015 investigative series documented how such clauses have become increasingly common in many kinds of contracts, leaving consumers at the mercy of an arbitration regime often predisposed against their interests. Subsequent coverage, on both the news and editorial sides, has kept a spotlight on the practice.

Perhaps the Times can extend this focus by writing about the decision by the New York Times Co. to embrace the trend. “We have updated our Terms of Service to add an arbitration clause that covers any disputes relating to our policies, your relationship with us as a subscriber, and your use of our products and service,” noted a December “update” from the Times.

The clause itself makes clear, in all-caps, that “YOUR AGREEMENT TO ARBITRATION MEANS THAT FOR ALL COVERED CLAIMS, YOU ARE GIVING UP YOUR RIGHT TO FILE A LAWSUIT IN COURT AND THE RIGHT TO A TRIAL BY JURY. INSTEAD, YOU WILL HAVE A HEARING BEFORE A NEUTRAL ARBITRATOR.”

Boldface added to highlight irony: This language is presented by the Times to its subscribers, who know from reading the Times what a crock it is. In their investigation of arbitration practices, Times reporters Jessica Silver-Greenberg and Michael Corkery showed that arbitrators feel “beholden” to the companies on whom they rely for referral after referral. Plaintiffs lack that financial muscle. “Why would an arbitrator cater to a person they will never see again?” said an arbitrator quoted by the Times.

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The Times arbitration clause affects those who “use” New York Times products and applications — mainly subscribers, that is. A look at previous legal complaints against the Times provides a glimpse at the sorts of court fights that the Times is looking to avoid. In June 2020, a California subscriber brought a class action against the company citing an alleged Times practice of collecting charges for automatic subscription renewals without first obtaining “affirmative consent.” The complaint also claimed that the Times needlessly complicated the process of canceling subscriptions. The parties concluded a $5.563 million settlement in 2021, though nearly $4 million of the settlement fund consists of access codes to Times products.

In 2019, the Times updated its terms of service by inserting a ban on class-action suits. In its most recent annual report, the Times Co. assesses that pending legal actions against the company are not “likely to have a material effect on the Company’s financial position.”

The Erik Wemple Blog asked the Times what cases prompted its arbitration clause, as well as what sorts of future cases it’s looking to avoid. The newspaper issued this statement: “We’ve updated our terms of service to add an arbitration clause that covers disputes relating to the use of our products and services. We believe our clause is fair, in line with industry standards and carefully crafted to ensure fairness to consumers. For example, the clause does not apply to small claims.”

The company’s statement didn’t respond to another question we posed, about how the arbitration clause jibes with the paper’s history of critical coverage regarding this corporate legal maneuver. “I think it’s incredibly hypocritical for the Times to have a forced arbitration clause for its readers,” says F. Paul Bland Jr., a veteran critic of mandatory arbitration and executive director of Public Justice. “Over a period of years, some of their best reporters have gone into great detail showing how unfair forced arbitration is, how it immunizes companies that have broken the law and hurt people from any legal accountability. So there are few corporations in the country more clearly on record as recognizing what’s unfair about forced arbitration.”

Other news outlets — including the Daily Beast, Bloomberg and Politico — also have arbitration clauses in their terms of service.

The terms-of-service amendment isn’t the Times’s first whirl with this insidious measure. As noted in this space in 2015, the company required participants in its Times Journeys program — pricey overseas trips guided by Times journalists — to knuckle under to an arbitration clause. The program gained infamy in 2021, when it emerged that former health reporter Donald McNeil had used the n-word during an academic discussion on a student trip to Peru in 2019. After that incident came to light, the company canceled Times Journeys.

The lesson: Cost-cutting, hassle-avoiding legal provisions can solve only so many problems.

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