The Long court focused on the distinction between “browsewrap” agreements and “clickwrap” agreements, both common forms of Internet contracts. Browsewrap agreements, unlike clickwrap agreements, do not require users to affirmatively click a button to confirm their assent to the agreement’s terms; instead, a user’s assent is inferred from his or her use of the website. Therefore, the determination of whether a binding browsewrap agreement has been formed depends on whether the user had actual or constructive knowledge of the website’s terms and conditions.
To reach its decision, the Long court relied heavily on the Ninth Circuit’s opinion in Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175, in which the Ninth Circuit court concluded that the act of placing an order did not constitute an unambiguous manifestation of assent to be bound by the browsewrap agreement.
The Nguyen court went on to hold that “proximity or conspicuousness of the hyperlink alone is not enough to give rise to constructive notice,” there must also be explicit textual notice warning users to “‘Review terms’” or admonishing users that by clicking a button to complete the transaction “‘you agree to the terms and conditions in the [agreement].’”