Following from last week, there is another counterpart to clickwrap agreements, known as a browsewrap. These are ultimately agreements that are harder to enforce than a clickwrap because instead of an action to assent to the agreement, a contract is formed, in part, by the individual continuing to browse the website. This would be akin to the terms of use that a website may have listed for users. This could be implemented to bind users, much like click-wrap, and for the same purposes. However, what are the limits to a browsewrap agreement? What is required to enforce a browsewrap agreement? What are some of the things that could ultimately dismantle a browsewrap agreement and how can you to avoid them?
What is required for a valid browsewrap agreement?
A valid browsewrap agreement requires that the agreement be available on the website, via a hyperlink, and can be clicked on for the visitor to read. However, this is generally harder for an individual to enforce, as there’s no “affirmative statement” like in clickwrap agreements. Instead, the affirmative statement is determined by the continued use of the website as specified in the terms. Yet, the way that this is compensated for is to demonstrate that the individual is aware that the agreement exists, and generally aware of its terms. In essence, if an agreement is present, and the visitor is aware that there are terms, the browsewrap agreement is more likely to be held as valid.
How can you ensure that a browsewrap agreement is valid?
In Nguyen v. Barnes & Nobel, Inc. out of the Ninth Circuit, the court found that the browsewrap agreement on Barnes & Nobel’s website was invalid. This was because while there was evidence that the terms were present on the website, there was insufficient evidence to construct that Nguyen knew, or should have known about the terms. The terms were close to the buttons to make a purchase, and Barnes & Nobel argued that, as such, Nguyen should have known.
Yet, the court disagreed to enforce a browsewrap agreement, and held that the website owner needs to put the user on notice, or require an affirmative action at some point. For example, an email to a user based on violation of the terms of use may put them on notice (i.e., cease-and-desist sent in Southwest Airlines Co. v. Boardfirst, L.L.C.), or some prompt to read the terms before continuing. Alternatively, a clickwrap agreement could be used in lieu of browsewrap agreement, especially in cases involving online sales. This would require that the individual check a box, further solidifying assent, rather than relying on the implied assent in browsewrap agreements. Browsewrap agreements would then be better suited for those situations where a service is being provided, or among websites that involve the creation of an account to enjoy certain functions, where the notice, opportunity and “assenting action” would be clearer (i.e., proceeding forward after making an account).
If you have questions about your browsewrap agreements, you may contact us to set up an initial consultation. At our law firm, we assist clients with legal issues related to business, technology, and e-commerce transactions.