Contracts formed on the internet come primarily in one of two forms: “clickwrap” (or “click-through”) agreements, in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.
Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly. A party instead gives his assent simply by using the website. In a pure-form browsewrap agreement, the website will contain a notice that, by merely using the services of, obtaining information from, or initiating applications within the website, the user is agreeing to and is bound by the site’s terms of service. Thus, by visiting the website—something that the user has already done—the user agrees to the Terms of Use not listed on the site itself but available only by clicking a hyperlink.
The defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists. Because no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of a website’s terms and conditions.
In a recent decision by California’s Second District Court of Appeal, the Court addressed the kinds of website design elements that may be sufficient to give rise to constructive knowledge of the terms of a browsewrap agreement. In Long v. Provide Commerce, Inc., ProFlowers.com owner Provide Commerce, Inc. (“Provide”) sought to compel arbitration based on a browsewrap provision contained in the company’s “Terms of Use,” which were viewable via a hyperlink displayed at the bottom of each page on the ProFlowers.com website. It was undisputed that Plaintiff did not actually read the Terms of Use, so the Court addressed whether the website’s design put the Plaintiff on constructive notice of the terms.
At the time Plaintiff placed his order on ProFlowers.com, the Terms of Use were available via a capitalized and underlined hyperlink titled “TERMS OF USE” located at the bottom of each webpage. The hyperlink was displayed in a light green typeface on the website’s lime green background, and was situated among 14 other capitalized and underlined hyperlinks of the same color, font and size. After the order was placed, Plaintiff received an email that included a hyperlink titled “Terms” at the bottom of the page.
The Court found that the Terms of Use hyperlinks—their placement, color, size and other qualities relative to the ProFlowers.com website’s overall design—were simply too inconspicuous. Screenshots of the website revealed how difficult it was to find the Terms of Use hyperlinks in the checkout flow even when one was looking for them. The subject hyperlinks were not located next to the fields and buttons a consumer had to interact with to complete an order. The Court concluded that the checkout flow was laid out in such a manner that it tended to conceal the fact that placing an order was an express acceptance of Provide’s rules and regulations.
The Court found that the hyperlinks and the overall design of the ProFlowers.com website would not have put a reasonably prudent internet user on notice of Provide’s Terms of Use, and Plaintiff therefore did not unambiguously assent to the arbitration provision simply by placing an order on ProFlowers.com.
The Court found that a lack of conspicuousness of the hyperlinks resolved the Long case, but the Court’s written decision also included the following advice, which applies even when a “terms of use” hyperlink is clearly visible:
“To establish the enforceability of a browsewrap agreement, a textual notice should be required to advise consumers that continued use of a website will constitute the consumer’s agreement to be bound by the website’s terms of use…In other words, a conspicuous “terms of use” hyperlink may not be enough to alert a reasonably prudent internet consumer to click the hyperlink…Online retailers would be well-advised to include a conspicuous textual notice with their terms of use hyperlinks going forward.”
The Long case is an important precedent in the enforceability of browsewrap agreements in California. For more information on the impact of the case and possible changes to your company's website in light of the decision, contact Rich Reese in LGC's San Diego office.
