In a case of first impression for California appellate courts, on March 17, 2016, Brett Long v. Provide Commerce, Inc. defined what sort of website design elements would be necessary or sufficient to create an enforceable browsewrap agreement in the absence of actual notice of said agreement. For some of you that sentence might be just a bunch of technical and legal jargon that doesn’t mean much, so let’s take a step back and get everyone on the same page before diving in. If you’re already on that page, feel free to skip the next couple of sections
What’s a “browsewrap agreement”?
Websites need to be designed too
A website is like a newspaper layout in that there are a number of decisions that have to be made about what goes where and what it will look like. Just like a newspaper editor must decide where to place certain articles and their headlines or what size the articles and their headlines should be presented at, so must a website designer decide where to place the various elements of the website – e.g. pictures, menus, links, etc. – and how those elements will appear on the website – e.g. color, size, and placement.
The reason that much thought and care needs to be put into these design elements is that the design elements are what both catch a user’s attention and direct them to where the website wants them to go or thinks the user wants to go. Just as a gigantic, bold headline on a newspaper immediately catches the reader’s eye and draws them into reading that particular article, so do design elements in the website draw the user’s attention to certain parts of a website, whether it be a key piece of information that the website wishes to convey or a product that the website wishes to sell. Moreover, just as we expect a degree of polish in the visual presentation of newspapers and magazines, so to does a polished and aesthetically-pleasing website raise the user’s perceived value and reliability of the website and, in turn, that of the business that operates the website.
This result is not necessarily surprising, given that it is simply an extension of existing contract law to “digital” contracts – that is, contracts have always required the mutual agreement of all parties to be enforceable and you cannot have mutual agreement when one party doesn’t even know that a contract exists.
So what does this mean for website designs?
If you’re involved in a lawsuit or risk management and have any questions regarding current or potential legal issues, we would urge you to contact an attorney as soon as possible to obtain advice, guidance and representation. At Baker, Keener & Nahra, we have the experience, skill, and drive to get the best possible results for our clients, no matter the size of the case or the scope of the problem. So if we can be of any assistance to you, please contact us and let us know how we can help.