California Rejects Browsewrap Arbitration Clause
In Long v Provide Commerce, Inc., the California Court of Appeal refused to compel arbitration based on a browsewrap agreement the consumer had no knowledge of.
It was not in dispute that the consumer did not have actual knowledge of the terms, so the question then was whether the terms and conditions were sufficiently clear and conspicuous to put the consumer on notice. The court reviewed the website and agreed with the trial court that the terms were too inconspicuous to put a reasonably prudent Internet consumer on inquiry notice.
True, on a handful of these pages no scrolling is required to complete the hunt. But that, in our assessment, does not change the practical reality that the checkout flow is 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.’ ” (Specht, supra, 306 F.3d at p. 32.)
The court added
Bottom line: If it matters, make them click.