Browsewrap Terms Not Enforceable Without Express Consent
Consumers cannot be expected “to ferret out hyperlinks” to contractual terms, the court added, especially in light of the wide range of technical skills among the universe of online buyers.
In Nguyen, the plaintiff initiated a false advertising and deceptive business practices class action arising from his attempt to purchase an HP “Touchpad” over barnesandnoble.com while the company was offering steep discounts during liquidation of Touchpad inventory. The website confirmed plaintiff’s transaction, however, the next day it e-mailed him saying the order had been canceled due to unexpectedly high demand.
Where a website has an explicit text notice that continued use will signify the users agreement to be bound, however, some courts have been more accepting of “browsewrap” agreements. Here, the Ninth Circuit noted a “traditional reluctance” to enforce “browsewrap” agreements against individual consumers.
Contact a terms and conditions lawyer to discuss maximizing the likelihood of the enforceability of your website agreements. Always provide clear and conspicuous notice of all terms and privacy practices. Require parties to expressly and unequivocally manifest assent prior to use of the relevant services.
If it is not practical to obtain consent prior to accessing the website material, reasonably ensure that the terms and conditions are prominently placed on the website so that a user will have notice of the actual terms and that the website is subject to them. Website terms and conditions that are only available via an inconspicuous hyperlink in mouseprint are likely not unenforceable.
Richard B. Newman is an Internet Marketing Compliance and Regulatory Defense Attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.