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Ninth Circuit Affirms – Browserwrap “Terms of Use” Link Not Enough

Schools are back in session with September is upon us, and website owners should be aware of a Ninth Circuit Court of Appels opinion “schooling” them on how to handle web Terms of Use, particularly those for consumer e-commerce websites.

Last year a California federal District Court held in Nguyen v. Barnes & Noble that merely providing a link from webpages to detailed Terms of Use pages (which have, in recent years, expanded from user requirements when using the specific website to detailed terms and conditions controlling commercial relations stemming from the website’s access) may not be enough.

On appeal, the Ninth Circuit affirmed, in Nguyen vBarnes & NobleInc., No12-56628 (9th Cir., August 18, 2014), that where a visitor does not have actual notice of Terms of Use then merely placing links on webpages to the Terms of Use is insufficient without more to find constructive notice of the consumer’s assent to the terms. This is not to say that including Terms of Use pages are suddenly a no go.  As the Ninth Circuit clearly stated “courts have consistently enforced browsewrap agreements where the user had actual notice of the agreement.”

And that “Courts have also been more willing to find the requisite notice for constructive assent where the browsewrap agreement resembles a clickwrap agreement—that is, where the user is required to affirmatively acknowledge the agreement before proceeding with use of the website.”

What the Ninth Circuit did hold, after a concise review of existing web “browser wrap” cases and applicability to different situations is, simply: that:

“[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”

The Terms of Use on the Barnes & Noble website was available via a hyperlink in the bottom left-hand corner of the website, where the hyperlink was underlined and displayed in green typeface in the lower left-hand corner of every page during the online checkout process.   Not enough, said the Ninth Circuit.

Takeaway

What this opinion should highlight for e-commerce websites, in particular, but for all B2C websites is that the burden of providing sufficient notice to users of the website’s terms and conditions falls on the websites.  The easiest way to do this is to clearly provide a check box or other clearly recordable indicia that the users have read (or at least clearly and repeatedly been given the opportunity to read the ToU) and also agreed to the Terms of Use as part of any checkout steps, or alternately have been provided a clear and conspicuous notice on the final order page that submission of the order constitutes agreement to the Terms of Use (with the Terms of Use linked at this stage again in the notice).

The e-commerce world has made great advances in recent years, but what hasn’t advanced at the same pace is keeping users and customers clearly briefed on just what terms and conditions they’re agree to when they consider a transaction online.

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The Author

R Santalesa

(p) 203.292.0667 (e) rsantalesa@smartedgelawgroup.com Richard Santalesa is based in Fairfield, Connecticut and New York City.
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