California State Court Sets Requirements for Enforceability of Browsewrap Agreements

For the first time in a decision having precedential authority, a California appellate court considered the enforceability of a ‘browsewrap’ agreement—that is, an agreement appearing on a website that does not require the website visitor to affirmatively click a button to confirm the visitor’s agreement to the proposed terms (Long v. Provide Commerce, Inc., 245 Cal. App. 4th 855 (2016)).

In Long, the plaintiff purchased flowers from the defendant’s website for his mother for Mother’s Day. Although the website depicted and advertised the floral arrangement as a “completed assembled product”, it was actually delivered as a “do-it yourself kit in a box requiring assembly by the recipient”. Plaintiff filed a lawsuit, claiming breach of various consumer protection and unfair competition statutes, and seeking class action status.

The website contained various hyperlinks to the website terms of use. Among other things, the terms of use included a provision requiring any dispute to be resolved by arbitration. The defendant accordingly moved to compel arbitration of the plaintiff’s lawsuit.

The Court needed to determine whether there had been an agreement between the parties to arbitrate based on the browsewrap arbitration provision.

Unlike a ‘clickwrap’ or ‘click-thorough’ agreement, a browsewrap agreement does not require the website visitor to affirmatively click a button to confirm the visitor’s agreement to the proposed terms; rather, the visitor’s assent is inferred from his or her continued use of the website. This requires a determination to be made as to whether the visitor had actual or constructive knowledge of the website’s terms and conditions. Here, the plaintiff claimed he did not have actual notice, so the Court considered whether he had constructive notice. The Court noted that no California appellate court had yet addressed what kind of website design elements would be adequate to show constructive notice of a browsewrap agreement.

The terms of use were viewable by clicking on a capitalized and underlined hyperlink located at the bottom of each website page (without having to scroll down), although the link appeared among other hyperlinks and was in a light green typeface on the lime green background of the website. The hyperlink was also visible during the check-out flow, and appeared (along with other hyperlinks) on an order confirmation email sent by (although the email required a scroll down to view the hyperlink).

Nevertheless, the Court concluded that the hyperlinks and overall design of the website were not conspicuous enough to have put a reasonably prudent internet user on notice of the website terms of use; and that therefore the plaintiff had not unambiguously assented to the terms of use by placing an order on the website. Thus, the Court refused to enforce the browsewrap arbitration clause, and the plaintiff could proceed with his lawsuit.

More significantly, the Court went a step further, setting a bright-line test for the future enforceability of browsewrap agreements—rather than merely being conspicuous, a browsewrap agreement should be required to have a textual notice advising consumers that the continued use of the website will constitute the consumer’s agreement to be bound by the website terms of use.

While Long is likely to be followed going forward by federal and state courts applying California law to browsewrap agreements between businesses and consumers, it is possible and perhaps even likely that the conspicuousness test will continue to be applied to browsewrap agreements between more sophisticated business parties. However, all parties using browsewrap agreements would be well-advised to heed the textual notice requirement.