Don't Bury Links to Your Browsewrap if You Want Them to Be Enforceable.

Sep 24, 2014 10:39:37 AM

Once again, a court has held ruled that burying the link to a browsewrap agreement (in this case Terms and Conditions) in the footer of a website is an excellent way to render that browsewrap agreement meaningless and unenforceable. The ruling comes from the United States District Court, Eastern District of California. The website in questions is Job.com, a website for job-seekers and employers. Job.com, as part of its case, tries to enforce the browsewrap Terms and Conditions to assert a breach of contract claim.

Job.com employed a link to its Terms and Conditions at the bottom of each page. Job.com argued that its browsewrap Terms and Conditions were enforceable against the plaintiff (1) by virtue of his use of the Job.com website, and (2) because the plaintiff was a "sophisticated internet user" who was familiar "with websites with similar browsewrap agreements, including his own personal website."

The court didn't buy it.

Citing Nguyen v. Barnes & Noble, Inc, the court says:

where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice. While failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract . . . the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers. Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.

Once again, this comes down to whether a website user has constructive notice that its use of a website is subject to a browsewrap agreement. Simply dropping a link in the footer to a browsewrap agreement and crossing your fingers is not enough. In laymen's terms, it needs to stick out and be obvious to the site user that use of the website is indeed subject to a browsewrap agreement in order for it to be enforceable.

Need help with your browsewrap agreement? Maybe PactSafe can help with our browsewrap widget.

Brian Powers

Written by Brian Powers

PactSafe CEO & Founder