Anyone who has purchased a product online or downloaded software for a computer, tablet or mobile device has likely encountered “browsewrap” and “clickwrap” agreements. Such agreements are the bread and butter of companies that sell or license products or provide services via websites or web applications. Clickwrap agreements require a user to affirmatively click a button to affirm his or her assent to the agreement’s terms, whereas with a browsewrap agreement, the user’s assent to the agreement’s terms is inferred from the user’s use of the website. (Often, the terms of a browsewrap agreement are accessible from a hyperlink placed on one or more webpages of the company’s website.)
Of the two, clickwrap agreements are often seen as the safer legal alternative, in part because browsewrap agreements do not require the user to take such an affirmative action. In order to understand just how easy it is for a browsewrap agreement to have unforeseen wiggle room, let’s look at a few recent cases that have addressed what exactly constitutes a valid, legally binding and enforceable contract.
Website Design Elements Matter.
In its analysis, the Court noted that for a browsewrap agreement to be enforceable, the user must know of the terms of the contract. Absent actual knowledge (i.e. cases where the user claims not to have read or known of the terms), the Court framed the issue as whether a “reasonably prudent Internet consumer” would be on inquiry notice of the terms, given the overall website design, including the placement and visibility of the hyperlinks to the terms. As part of the analysis, the Court analyzed whether the hyperlinked terms on the ProFlowers.com were “conspicuously” placed such as to put a user on notice. The Court considered various website design elements present on the website, such as the placement of the hyperlinks on the webpages, their size, proximity to other hyperlinks, and font colors in relation to the webpage background colors, among other things.
Conspicuous Hyperlinks May Not Be Enough.
Turning specifically to the browsewrap context, the Ninth Circuit noted that courts have enforced browsewrap agreements where the user had actual notice of the agreement. However, where there is no evidence that the website user had actual knowledge of the agreement, “the validity of the browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract.” Inquiry notice of a browsewrap agreement then depends on the design and content of the website and the agreement’s webpage.
We Repeat: Website Design Elements Matter.
In short, for browsewrap that “clings,” a company must keep the user’s entire interaction with its website in mind.