California Rejects Browsewrap Arbitration Clause

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.

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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.

Indeed, our review of the screenshots reveals how difficult it is to find the Terms of Use hyperlinks in the checkout flow even when one is looking for them. This of course is to say nothing of how observant an Internet consumer must be to discover the hyperlinks in the usual circumstance of using ProFlowers.com to purchase flowers, without any forewarning that he should also be on the lookout for a reference to “Terms of Use” somewhere on the website’s various pages.

Contrary to Provide’s characterization, the subject hyperlinks in the checkout flow are not “located next to” the fields and buttons a consumer must interact with to complete his order. Those fields and buttons are contained in a separate bright white box in the center of the page that contrasts sharply with the website’s lime green background. To find a Terms of Use hyperlink in the checkout flow, a consumer placing an order must (1) remove his attention from the fields in which he is asked to enter his information; (2) look below the buttons he must click to proceed with the order; (3) look even further below a “VeriSign Secured” logo and notification advising him that his “order is safe and secure,” which itself includes a hyperlink to “Click here for more details”; (4) look still further below a thick dark green bar with a hyperlink for “SITE FEEDBACK”; and (5) finally find the “TERMS OF USE” hyperlink situated to the right of another hyperlink for the website’s “PRIVACY POLICY,” both of which appear in the same font and light green typeface that, to the unwary flower purchaser, could blend in with the website’s lime green background.

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

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 our view, the problem with merely displaying a hyperlink in a prominent or conspicuous place is that, without notifying consumers that the linked page contains binding contractual terms, the phrase “terms of use” may have no meaning or a different meaning to a large segment of the Internet-using public. In other words, a conspicuous “terms of use” hyperlink may not be enough to alert a reasonably prudent Internet consumer to click the hyperlink. As the Nguyen court observed, “[w]hile failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract, the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers. Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.”

Bottom line:  If it matters, make them click.