Browsewrap Agreement Held Unenforceable by Ninth Circuit Against Consumer Due to Insufficient Notice
Many commercial websites rely on “browsewrap” agreements to bind visitors to commercial terms. A recent decision by the Ninth Circuit suggests that a review of how those terms are presented may be in order to ensure enforceability.
A browsewrap agreement is a set of terms which is accessible via a hyperlink located on the pages of a website. The user does not have to view those terms and does not have to click on a button to agree to the terms expressly, and instead presumably gives his or her assent simply by using the website.
Courts have generally evaluated the validity of browsewrap agreements based on whether the user had actual or constructive knowledge of a website’s terms and conditions and whether the user manifested assent to those terms.
In the Nguyen case, the plaintiff attempted to purchase a discontinued tablet computer that was offered at a steep discount on the Barnes & Noble (“B&N”) website, but, after completing the transaction, B&N cancelled the order due to unexpectedly high demand. The plaintiff, on behalf of a putative class, brought deceptive practices and false advertising claims under state law, alleging that he suffered damages because he could not obtain the tablet at the discounted price and was forced to purchase a similar product at a higher price.
It seems that B&N made it halfway to the finish line of enforceability, but no more. The court noted:
While the link to its terms were placed on the bottom-left corner of every page in somewhat close proximity to the buttons a user must click on to complete an online purchase, and were positioned on the same screen so a user would not have to scroll down to click the link, it still wasn’t enough for the Ninth Circuit to find an enforceable agreement.
Many website publishers rely on the enforceability of browsewrap agreements. The Nguyen decision suggests that a review be taken to ensure that the presentation of those agreements comport with the Ninth Circuit’s view on web design.