Last month, the United States District Court for The Northern District of Illinois has refused to enforce a forum selection clause in a "browsewrap" agreement (Hussein v. Coinabul, LLC, No. 14-5735, 2014), which required any dispute between the website's owner and any of its customers to be heard in the state courts of Wyoming.
The court denied a motion to dismiss the lawsuit, on the grounds that the "browsewrap" agreement gave no actual or constructive knowledge of its terms and conditions. The court observed that the hyperlink that linked users to the site's terms and conditions, which contained the forum selection provision, was "listed among ten other hyperlinks at the bottom of every page…without some additional act of notification." Accordingly, the hyperlink was insufficient for the purpose of providing reasonable notice of the site's terms and conditions. In this regard, the court concluded that customers cannot be expected to be familiar with the forum selection provision, and therefore it does not apply.
This ruling follows our previous report and the courts' traditional reluctance to enforce "browsewrap" agreements against individual consumers. This ruling further illustrates the importance of substantiating an actual/express notice of the Terms of Use Agreement to the user (i.e. by actively approving the Terms of Use Agreement).