A federal appellate court recently held that a hyperlink to a document containing a forum selection clause was a reasonable means of communicating that clause to a customer. As a result the customer will have to litigate her dispute a little farther north – in Canada.
Plaintiff Elizabeth Starkey booked a vacation tour of the Galápagos Islands operated by G Adventures. Starkey alleges that, while she was on tour, a G Adventure employee sexually assaulted her. Starkey filed a lawsuit against G Adventure in the United States District Court for the Southern District of New York.
But Starkey didn’t realize that she had consented to the Ontario and Canadian courts’ exclusive jurisdiction over her matter. When Starkey booked her tour, G Adventures sent her three emails, each containing a hyperlink to the company’s Terms and Conditions. The Terms and Conditions contained a forum selection clause, giving Ontario and Canadian courts exclusive jurisdiction over matters arising from the tour. Starkey alleged she never clicked on the link to read the Terms and Conditions. This means Starkey behaved like approximately 99% of the population when given the opportunity to read fine print.
The district court dismissed Starkey’s complaint, holding G Adventures had reasonably communicated the forum selection clause. The court of appeals affirmed, recognizing that whether G Adventures reasonably communicated the forum selection clause to Starkey was a close call. The court stated the case could have been easier if G Adventures had simply used a “clickwrap” mechanism to provide reasonable notice and to obtain consent. A clickwrap agreement requires a user to agree to terms and conditions prior to using a product or service, by clicking a “button” on the Web site.
Typically, a tour company reasonably communicates a forum selection clause where its printed promotional brochure directs the traveler’s attention to the terms and conditions printed on another document. G Adventures’ emails directing Starkey to the Terms and Conditions by means of a hyperlink, serves the same function as cross-referencing language in a printed promotional brochure and sufficed to direct Starkey’s attention to the Terms and Conditions. And the Terms and Conditions contained clear and unambiguous language that reasonably communicated the forum selection clause to Starkey.
Starkey argued that enforcing the forum selection clause would be unreasonable and unjust. The court held Starkey presented no evidence that she would not receive a fair hearing in Canada or that G Adventures designated Canada as the exclusive forum to discourage customers from bringing legitimate claims. Starkey next argued the forum selection clause violated public policy because Canada doesn’t follow the “American Rule.” Under Canadian law, Starkey could be liable for G Adventures’ attorneys’ fees if her lawsuit was unsuccessful. The court rejected the argument, stating it is not against public policy merely because the foreign law or procedure is different or less favorable than that of the United States.
And the court rejected Starkey’s argument that the forum selection clause should not be enforced against her because she is a survivor of sexual assault. The court was reluctant to distinguish one set of victims from another.
The lesson? Beware hyperlinked terms and conditions. They may add another destination to your itinerary. Even Canada, eh?