What is the Root Concern with “Browsewrap” Agreements?
Browsewrap agreements are common in online retailing as a tool to reduce the transaction time required for online purchases while simultaneously providing the user with information about the terms of the sale. Because a user may not actually read a browsewrap agreement, the validity of a browsewrap agreement turns on whether, in using the website, the user should have known that she was agreeing to a contract about her use of the website.
The Facts Bloom Before the Court
How in Carnation to Enforce Arbitration Clauses in Browsewrap Agreements
A Thorn in the Side of Online Retailers: The Limiting Effects of Long on Browsewrap Agreements
This decision serves as a reminder to online retailers that they should be clear with consumers when seeking to create enforceable browsewrap agreements—especially with arbitration clauses. While browsewrap agreements have greatly reduced barriers to transaction in the online marketplace, the law is developing to protect the widest range of consumers possible. And although some purchasers of online goods may be able to understand that they are agreeing to the terms in browsewrap agreements, the Court of Appeal now warns that it will seek to protect even the least savvy shopper from being bound to terms that they were not aware existed. Going forward, online retailers should heed the Court of Appeal’s call to provide conspicuous disclosure of both the hyperlinks to their browsewrap agreements and the textual notice indicating their intent to bind users to their browsewrap agreements.