Long’s Analysis. After noting that no California appellate court had yet weighed in on what “website design elements” were “necessary or sufficient,” id., the Court of Appeal looked to two federal court opinions for guidance: Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002), and Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014). Focusing on hyperlinks presented to the consumer during the checkout process and in the order confirmation email sent after the purchase, the court concluded that their placement, size, font color, and other qualities relative to the rest of the site/email were too inconspicuous to place a reasonably prudent Internet consumer on notice.
Although the court’s comments are expressly advisory, they do signal what factors at least one Court of Appeal might consider in future cases and, importantly, confirm that the court does not view browsewrap agreements as per se unenforceable.