Consumers may be bound by arbitration provisions in internet “clickwrap” or “browsewrap” agreements – except when they are not – as was the case in Long v. Provide Commerce, Inc., B257910 (2/3 March 17, 2016) (Jones, J.).
Internet contracts “come primarily in two flavors: ‘clickwrap’ (or ‘click-through’) agreements, in which website users are required to click on an ‘I agree’ box after being presented with a list of terms and conditions of use; and ‘browsewrap’ agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen,” quoting from Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014). The Second District panel informs us, “[N]o California appellate court has yet addressed what sort of website design elements would be necessary or sufficient to deem a browsewrap agreement valid in the absence of actual notice.”
Nguyen, which I previously posted about on August 18, 2014, explained, “the defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists.” The determination of the validity of the browsewrap agreement turns on whether the user has actual or constructive knowledge of a website’s terms and conditions – and that, in turn, depends on how conspicuous the terms and conditions are.