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Screen design is extremely important for companies seeking to enforce their terms in court. Oftentimes, the enforceability of online agreements, such as clickwrap and sign-in-wrap, hinges on whether the screen design put users on reasonable notice of the terms. When evaluating screen design, courts consider a number of factors.
Content Download: Clickwrap Litigation Trends: 2021 Report
One factor courts consider when evaluating screen design is whether the screen is cluttered or clean and simple. When screens are cluttered with information, buttons, and links, courts are likely to find that users were not put on notice of the terms. On the other hand, if the screen design is simple, with few buttons or links, courts are more willing to find that users were provided with adequate notice.
For example, the court in Meyer v. Uber Technologies, Inc. liked that Uber’s screen was “uncluttered,” the links to the terms appeared “directly below the buttons for registration,” and the entire screen was “visible at once,” with no need to scroll. Conversely, the court in Nicosia v. Amazon.com, Inc. did not like that Amazon.com’s screen contained multiple buttons, messages, order and financial information, and approximately fifteen to twenty-five links.
Another factor courts consider when looking at screen design is whether the terms are available to users, and if users are afforded an opportunity to review prior to accepting them. When the link to the terms appears in “obscure sections of a webpage that users are unlikely to see,” courts are not likely to enforce them. Likewise, if the terms are hyperlinked and the link does not resemble a traditional hyperlink, blue and underlined, courts are likely to find insufficient notice of the terms.
For example, the court in Cullinane v. Uber Technologies, Inc. did not like that the link to the terms did not resemble a traditional hyperlink. The hyperlink was white text located in a grey rectangular box instead of “commonly blue and underlined.” Finally, Uber’s screen contained a number of similarly styled hyperlinks and buttons, and the court reasoned that “if everything written on the screen is written with conspicuous features, then nothing is conspicuous.”
By contrast, the court in Meyer v. Uber Technologies, Inc. liked that Uber used a dark font that contrasted well against the white background, and the hyperlinks looked like traditional blue underlined hyperlinks.
A third factor courts consider when evaluating screen design is what words appear on the screen, and whether the language indicates that the user is entering into an agreement. Additionally, when looking at the language used on the screen, courts consider whether users were required to take explicit action to indicate acceptance of the terms.
For example, the court in Meyer v. Uber Technologies, Inc. liked that Uber unambiguously alerted users that by creating an Uber account, they agreed to the terms. On the other hand, the court in Nguyen v. Barnes & Noble, Inc. noted that Barnes & Noble made the hyperlink to the terms conspicuous, but did nothing else to notify the user or require the user to take action to indicate acceptance of the terms. The court reasoned that although the terms were conspicuously available via hyperlink on each page of the website, users were not prompted to “take any affirmative action to demonstrate assent.” Likewise, the court in Nicosia v. Amazon.com, Inc. reasoned that though Amazon.com included language “By placing your order, you agree to Amazon.com’s privacy notice and conditions of use,” the “Place your order” button didn’t immediately indicate to users that additional terms apply.
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The following are the top violations of best practices we found in case law over the course of 2020. It is followed by an updated best practice list to ensure enforceable agreement records.
Poor screen design was the most commonly violated best practice in 2020. Forty-three percent of companies that were unable to enforce their terms lost because the screens failed to put users on notice of the terms. They did so by failing to make the agreement language and corresponding button conspicuous, using browsewrap agreements instead of clickwraps to alert users of the terms, choosing poor language to reference the terms, pre-checking checkboxes, and not spatially locating agreement language next to the corresponding button.
The second most commonly violated best practice last year was lack of a robust back-end record. Twenty-six percent of companies that failed to enforce their terms lost because they were unable to produce a robust back-end record of contract acceptance. Notably, several of these companies were able to produce a record of initial contract acceptance, but were unable to do so for modifications to the terms.
Other best practice violations include failure to obtain affirmative assent to the terms (i.e. using sign-in-wrap instead of clickwrap), failure to disprove fraud, and failure to gather evidence in time to meet court deadlines.
Download our Clickwrap Litigation Trends: 2021 Report for more on clickwrap best practices and how the courts assess clickwrap agreements.