As websites today develop increasingly complex relationships with visitors, the contracts that define those relationships have become more difficult for companies to impose as binding. Recent litigation surrounding “Terms of Service” (ToS) agreements has put pressure on companies to draft agreements that courts will actually enforce.
Today’s ToS contracts generally come in two forms: clickwrap and browsewrap. Clickwrap agreements require users to affirmatively review the terms and, at the end, to press the “I accept” or “I agree” button to indicate their assent. Browsewrap agreements, on the other hand, are passive. On most websites, the terms are connected to the main page via hyperlinks and do not require any affirmative action. Instead, visitors signal their acceptance of the ToS by using the website. Both types derive their names from “shrink-wrap agreements,” which were the extremely long, fine print ToS’s that appeared under the plastic wraps of prepackaged software. Browsewraps, in particular, have fallen under heavy scrutiny in recent years.
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Thus, in October 2012 the court held that the arbitration provision contained therein was unenforceable, noting that “the advent of the Internet has not changed the basic requirements of a contract, and there is no agreement where there is no acceptance, no meeting of the minds, and no manifestation of assent.” Indeed, the court found that a “highly inconspicuous hyperlink buried among a sea of links” does not provide the customer with adequate notice. Without acceptance and a manifestation of assent, “no contract exists” and plaintiffs cannot be compelled to arbitrate. (In re Zappos.com, Inc., Customer Data Security Breach Litigation)
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The court explained that the central issue in cases with browsewrap agreements is whether users received actual or constructive noticed of the ToS. Here, there was no evidence that the user had any actual knowledge of the agreement, let alone the arbitration clause. The validity of the agreement, then, turns on whether the website puts a “reasonably prudent user on inquiry notice of the terms of the contract.” The court considered the placement of the link, notices to users of the terms, and the layout of the website. Ultimately, the court held that “the proximity or conspicuousness of the hyperlink alone” is insufficient to give rise to constructive notice. And because Nguyen did not receive adequate notice of the terms of the contract, the court held that he could not be bound by the arbitration provision therein. (Nguyen v. Barnes & Noble, Inc.)
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On the other side of the equation, some tech start-ups are working to make ToS agreements more transparent for consumers. Terms of Service; Didn’t Read is one such project, aiming to fix “the biggest lie on the web: almost no one really reads the terms of service we agree to all the time.” Indeed, this was confirmed by a 2008 study by Carnegie Mellon professors, which found that the average internet user encounters almost 1,500 privacy policies a year, most of them exceeding 2,500 words. With few people willing to spend time reviewing each and every ToS that comes their way, Terms of Service; Didn’t Read intends to fill that gap. The organization has generated a peer-review process to rate various companies’ ToS policies from “Class A,” signaling it is among the best, through “Class E,” warning that it is very troubling for consumers.
As courts such as the Ninth Circuit invalidate arbitration clauses in browsewrap ToS agreements, the pressure will be on companies to adapt their agreements so that courts will enforce them. Companies may well have a better chance with clickwraps.