It was obvious at the time that the change was a reaction to multiple data breaches experienced by the company. By preventing class action lawsuits, they clearly hoped to avoid losses from lawsuits over any future negligence on their part.
Under the terms of the new agreement, any PSN subscriber who wished to retain the right to join a class action lawsuit in the future would be required to contact Sony and opt out of this particular clause within 30 days of agreeing to it.
In the case of a data breach due to Sony negligence, that would mean each individual subscriber would have to file a separate lawsuit in order to collect any damages.
Now Gamespot is reporting a California man has responded to the change with a class action lawsuit. They say he claims the clause was hidden 21 pages into the agreement, making it unlikely those agreeing to it would ever notice.
He also argues the document wasn't made available online where it could be more easily scrutinized. However, that claim seems to be shaky since we obtained a copy of the agreement from Sony's website when the change was made. You can read the entire document below.
What will perhaps be key to this lawsuit is whether the agreement can be enforced to begin with. In some cases, particularly when there is negligence involved, certain rights may not be waived regardless of how a contract is worded.
Typically this becomes an issue when one party to a contract has significantly more power in writing the agreement or attempts to deceive the other party, both of which appear to be the case here.
No doubt Microsoft, who recently added similar language to the Xbox Live TOS, will be watching this case closely.
Written by: Rich Fiscus @ 21 Dec 2011 9:46
