A Web site operator could not enforce limitations on access set forth in its Terms of Use, where the ToU were not displayed on the site in a way in which a reasonable user could be expected to notice them, a district court ruled. The operator alleged that a competitor accessed the Web site in order to scrape its database of event venues, in violation of a provision in ToU stating that access by competitors was unauthorized. The court concluded that the ToU was not binding on the competitor because the competitor did not have actual or constructive notice of the ToU. The court noted that the ToU was only accessible via a link "buried" at the bottom of the first page of the operator's site and in fine print, in a location that required visitors to scroll down to view it. The court also noted that the link led to a page with several categories of Terms of Use, none of which applied to the competitor. The court similarly concluded that the operator failed to meet the standard for determining assent to online terms of use set forth in the Virginia version of the Uniform Computer Information Transactions Act, Va. Code §§ 59.1-501.11 & -501.12, which require that the user have an "opportunity to review" the terms, and that the user engage§ in conduct indicating assent to the terms.
Cvent, Inc. v. Eventbrite, Inc., 2010 U.S. Dist. LEXIS 96354 (E.D. Va. Sept. 14, 2010) Download PDF
