Ecommerce has existed in its current form for over 30 years now, but businesses still haven’t figured out how to obtain enforceable terms of use agreements for consumers that visit these millions of websites annually.
It is really amazing if you pause and think about it–a massive number of wasted disclosures and terms of use sit buried at the bottom of nearly every webpage. Junk disclosures that are rarely seen and even more rarely read.
These disclosures include myriad terms website operators hope will bind a user–from arbitration provisions to promises not to misuse IP rights. But are any of them really enforceable?
Truthfully, probably not. At least not in many jurisdictions.
For instance in Tate v. Progress Residential, 2024 WL 551979 (D. Az. Feb. 12, 2024) a court refused to enforce an arbitration provision buried within a terms of use disclosure at the bottom of a website against a TCPA plaintiff.
The Court noted that all parties agreed the plaintiff had visited the website and submitted a form on the website. But although the website had definitively been “used” the court did not enforce the “terms of use” the website operator had buried on the site:
As an initial matter, the Court finds that the display of the Terms of Use at the rentprogress.com landing page, when taken in isolation, is presented in a “browsewrap” fashion and does not bind Plaintiff to the Terms of Use. This finding is consistent with Nguyen, in which the Ninth Circuit found that the mere availability of a hyperlink to terms of use that otherwise does not prompt the user’s affirmative assent does not bind the user to the terms of use. 763 F.3d at 1178–79. Neither party disputes that Plaintiff used Defendant’s website in order to submit a rental application. However, though the Terms of Use are hyperlinked on the landing page, the user is not required to affirmatively manifest assent to the terms. Accordingly, this display does not suffice to create a valid contract between the parties.
This conclusion also applies to the first references to the Terms of Use in the rental application which Plaintiff submitted. At two pages of the rental application there are displayed hyperlinked prompts which read “Check out our Terms & Privacy” or “please read our Terms & Privacy.” By their plain language, although these prompts do direct the user to the Terms & Privacy, neither indicates that the user agrees to the Terms & Privacy. The user is not required to follow the hyperlinks or acknowledge the Terms in any manner before proceeding to the next page of the rental application. As such, these references to the Terms are also presented in a browsewrap fashion and do not bind Plaintiff to the Terms of Use
That bolded portion is the meat of the analysis–a mere hyperlink on a website without a required acceptance by the consumer is just not sufficient to permit a court to enforce a disclosure in a terms of use.
Eesh.
There’s a reason those pop ups and barriers preventing website access absent acceptance of a terms of use disclaimer have become so popular. While many folks are reluctant to use them the case law continues to move in a direction that heavily favors such disclosures over the mere use of a static hyperlink at the bottom of a page.
And these disclosures have impact far beyond the TCPA, of course. Myriad state privacy rules-particularly the deadly CIPA–require affirmative consent of consumers that many courts find simply cannot be obtained by browsewrap hyperlinks.
You’ve been warned. 🙂
For a deeper dive into the enforceability of online disclosures of this type you will DEFINITELY want to attend the LAW CONFERENCE OF CHAMPIONS coming this July in Orange County California.
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