I wish to highlight a serious ethical and practical issue we all face when using cloud-based Software as a Service (SaaS) applications — especially for “controversial” writing and audio/video content. It is a summary of what I have learned after I have been “deplatformed” suddenly by Medium in March of 2019, and Mailchimp in March of 2020.
There are four parts to this article:
- Summary of “termination for cause” versus “termination for convenience” contractual terms
- The impact on me of deplatforming as a statement of historical fact
- A brief review of the terms of some select email marketing platforms
- My recommendation for policy makers looking at remedying the injustices and power imbalances inherent in this issue
This article was put together with the pro bono help of contractual legal manager Robert Johnston who is based in Scotland. It does not constitute legal advice, and all errors and omissions are mine to own.
Termination for convenience
I am highlighting how the contracts for SaaS services often have a clause that enables “termination for convenience” by the service provider. This contrasts with “termination for cause”, which is self-explanatory. The related act of “deplatforming” is an issue of political censorship and potentially even criminal racketeering — not merely the ordinary policing of abuse of cloud services. Specifically, “deplatforming” happens both without notice or due process, causing substantial harm and distress to its innocent target.
It is worth noting that “termination for convenience” goes both ways: it also means you as a buyer can leave them as a seller at any time. There is an inherent power asymmetry between users and providers of SaaS services: your business can be dependent upon their software platform, but their business is not reliant upon any one enterprise customer. This means your ability to leave them without notice or cause is not a contentious matter.
The converse can happen with procurement or construction, where the seller is reliant upon one buyer, and will have invested heavily in supplying the contract before they get their return. Such “convenience” clauses have gained a bad reputation in these industries, for they are seen as an unethical back door to avoid the responsibilities of contract law.
Normally when one party feels aggrieved, there is a process of complaint, and an opportunity for the at fault party to remedy the situation. “Termination for convenience” allows the more powerful party a means to lawfully walk away from their obligations to serve all equally — and to effectively repudiate the contract. This is arguably not in the public interest since it is unjust.
There is a more subtle issue too, which is anti-discrimination law. For example in the UK [my emphasis]…
The
Equality Act 2010
protects a greater range of characteristics than the hate crime legislation. The act protects people from discrimination (less favourable treatment) on grounds of their age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, or sexual orientation. It enables private individuals to sue a person or organisation for discriminating against them on the protected grounds in various contexts, including in employment (including from the application and recruitment stage), in the provision of services, and in education.
The ability to pick and choose your customers is a backdoor through which (illegal) discrimination can occur. So you could using “termination for convenience” to deplatform trades unionists, justice campaigners, or (in my case) citizen journalism. It opens the door to business partners and other customers applying pressure to harm those they disapprove of or compete with.
In the case of Mailchimp, they sponsor the Centre for Disease Control, and I have written about criminality by such Globalist entities. Medium’s founders are part of the Silicon Valley establishment, some of whom stand accused of serious wrongdoing (especially in their dealings with China). I was summarily terminated with no reason or recourse having written about this corruption.
Impact of deplatforming on me and my work life
As a testimonial to the cost of deplatforming via “termination for convenience”, I would like to briefly summarise the impact upon me of Mailchimp singling me out for termination. I had two mailing lists, one for my more political writing, and one for my artwork, both on the same Mailchimp account. The art mailing list used API integration to synchronise with Art Store Fronts.
User experience/customer impact:
- All newsletter sign-up links severed; 25+ emails from people alerting me needing response; unknown number of leads lost
- No images load from historical emails
- All links to Mailchimp articles broken (e.g. from personal website, tweets)
Economic impact on me:
- Integration with Art Store Fronts broken so unable to launch art store; delay 2-3 months
- All my legacy Paypal/Patreon links are broken (so loss of income)
- Have to pay for multiple services at once, and approximate doubling of cost of my email marketing (from around $70 to $130 a month)
- Ongoing time cost of awkward manual synchronisation of contacts between Art Store Fronts and Sendinblue
Effort to restore email marketing functionality:
- Considerable support correspondence with Art Store Fronts
- Researching alternative providers and terms of service
- Signed up to aWeber, but contacts would not import properly
- Attempt to manually add via Google mailout but rejected
- Moved writing/politics list to ConvertKit instead
- Moved art mailing list to Sendinblue
- Learning curve for aWeber, ConvertKit, Sendinblue to send campaigns
- Provisioning and approvals effort for each of these (domain integrations, sign up forms, etc.)
Effort to restore content functionality:
- Migration project of all Mailchimp article content to WordPress (thanks to my helper!)
- Missing images issue due to content being on Mailchimp and disabled
Impact on me personally
- Hit at same time as lockdown (and separation from my children), living on my own for the first time, and other health issues. My mental health definitely took a hit as I was under personal attack.
- Strained my relationship with Art Store Fronts, who refuse to take responsibility for their choice of sole partner. Nascent art business put under cashflow pressure.
This is not meant as a public whinge, but rather to highlight that there is a real impact on ordinary people going about legitimate business. This is the reality of being deplatformed for no fault of your own — as Mailchimp themselves stated.
Summary of Ts&Cs of select email marketing platforms
Speaking of which, let me first specifically address Mailchimp’s likely breach of contract, and then share a few data points from other providers that might help you to understand the issue and what is at stake here. Here is their termination term under “Closing your account”:
You or Mailchimp may terminate the Agreement at any time and for any reason by terminating your Mailchimp account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause.
Note how they can suspend or terminate an account. These words matter, as the initial communication I received is: “Your account is in violation of our Terms of Use, and it has been disabled”. The word “disabled” is not part of their contractual language. I then had an email that said:
“We have nothing personal against you or your business, but in order to protect all of our users and ensure the deliverability of everyone’s campaigns, we have to ask that you seek a new vendor for your email marketing needs”
At no time was I given the actual legal notice of termination, whether for cause or not! My account just stopped working. Combined with their failure to give me any chance to remedy a problem, a court could easily decide that this was a breach of contract and award damages. It seems they have become accustomed to dumping unloved customers for no cause and with no consequences to themselves.
This is not an issue unique to Mailchimp. Take Squarespace, for example: “We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice [my emphasis].” — but they then go on to elaborate on how they may wish to pick and choose between this and either an informal complaints process, or a formal arbitration one. The user is left at the mercy of the clause quoted above and without any power to ensure due processes with cause is followed.
Service Providers AWeber, ConvertKit and ActiveCampaign have similar termination for convenience clauses. They all also have dispute resolution as arbitration set out. They all also set out what is considered to be a breach, but on the other hand, they can terminate without cause or reason. Users have no power to enforce a meaningful process that is just and fair.
The one exception we found is Sendinblue:
In the event of non-compliance by the Users with these General Conditions of Use, with Sendinblue’s privacy and anti-spam policies or with any legal or regulatory provision or one resulting from an applicable international agreement, Sendinblue reserves the right to terminate the Users’ account subject to 15 days’ notice.
The termination will occur without notice in the event of non-compliance with the article “Use of Services” of these conditions.”
This means there seems to be no “termination for convenience” clause. Immediate termination can only occur if very specific disallowed actions are taken by the user, with a list of prohibited topics like pyramid schemes and gambling. Otherwise termination has to be both for cause and with notice.
Public policy issues
I believe that the following are questions that policymakers should be asking themselves:
- Should “termination at convenience” clauses be permitted for consumers and SMBs? (Presumably large enterprises have lawyers and negotiating power over contracts.)
- Should “zero notice” be permitted for termination for convenience? (Clearly it should be in some cases for cause, such as fraud.) What are the minimum periods after contract commencement that termination can occur?
- SaaS platforms are often 2-sided market structures, e.g. with API partners and customers. Should exclusivity clauses be permitted with API partners, or are these fundamentally anti-competitive?
- What are the proxies that can be used for illegal discrimination? How many of those “terminated for convenience” were arguably discriminated against?
- Is “termination for convenience” compatible with being a platform — rather than a publisher, and gaining the benefits of liability protection? Or is it a way to have the upside without the cost of serving all equally?
- To what extent to SaaS users, and specifically email marketers, need to experience “shared fate” over the reputation of their service and deliverability of their content? Should “termination for convenience” be allowed as a means to deselect “unpopular” content (as defined by other parties)?
- What rights should consumers have to retrieve their data when terminated by SaaS services? Should there be a right to continue to have “legacy” functionality sustained (like URL redirection and image loading) when terminated without cause?
- How is “termination for convenience” abused? What are the consequences of corrupt parties “leaning” on partners and suppliers to punish others? Is “termination for convenience” a facilitator for racketeering?
My personal experience and belief is that “termination for convenience” is ripe for abuse, has been abused, and should not be allowed in contracts of this kind. It is enabling not only commercial abuse, but also (in my view) criminal activity, it being used to cover up crimes and harass citizen journalists.
For you the reader, this may be a good time to review your exposure to SaaS applications with termination for convenience clauses. This all seems very theoretical and unlikely — until it happens to you. As I have been hit twice, I can say that contingency planning is time well spent.
I hope this has all proven to be good food for thought. I would be most interested to hear your experiences and feedback.
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