{"id":358,"date":"2016-03-23T04:56:54","date_gmt":"2016-03-23T04:56:54","guid":{"rendered":"http:\/\/bknlawyers.com\/?p=358"},"modified":"2024-04-30T07:50:05","modified_gmt":"2024-04-30T07:50:05","slug":"court-of-appeals-all-websites-must-revise-their-terms-of-use","status":"publish","type":"post","link":"https:\/\/bknlawyers.com\/?p=358","title":{"rendered":"Court of Appeals: All Websites Must Revise Their Terms of Use"},"content":{"rendered":"

In a case of first impression for California appellate courts, on March 17, 2016, Brett Long v. Provide Commerce, Inc.<\/em> 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\u2019t mean much, so let\u2019s take a step back and get everyone on the same page before diving in. If you\u2019re already on that page, feel free to skip the next couple of sections<\/p>\n

What’s a “browsewrap agreement”?<\/strong><\/p>\n

Go to a website, any website (or you could, you know, just stay on this website), and take a look at the bottom of the page. I\u2019ll use the Google search website for our example, though, probably a page everyone is familiar with. At the bottom right of the page (or at the bottom center-ish of the page if you\u2019re on a mobile device), you\u2019ll see the word \u201cTerms.\u201d On some websites there might be a similar link called \u201cTerms and Conditions,\u201d \u201cTerms of Use,\u201d or \u201cConditions of Use.\u201d These are what are commonly referred to as \u201cbrowsewrap\u201d agreements \u2013 that is, terms and\/or conditions that a user is assumed to have agreed to merely by the continued use of the website.<\/p>\n

Websites need to be designed too<\/strong><\/p>\n

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 \u2013 e.g. pictures, menus, links, etc. \u2013 and how those elements will appear on the website \u2013 e.g. color, size, and placement.<\/p>\n

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\u2019s 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\u2019s eye and draws them into reading that particular article, so do design elements in the website draw the user\u2019s 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\u2019s perceived value and reliability of the website and, in turn, that of the business that operates the website.<\/p>\n

Terms of Use must be open and obvious to all users<\/strong><\/p>\n

Now that we\u2019ve defined all of our terms, let\u2019s get back to the case. Basically, Brett Long ordered flowers from Proflowers.com, was ultimately unhappy with the experience, and sued the parent company, Provide Commerce, Inc. for consumer fraud. Provide moved to compel arbitration based on the Terms of Use contained on the website and Mr. Long opposed arbitration, arguing that he never agreed to the Terms of Use on the website and so could not be bound by them. The trial court agreed with Mr. Long and, ultimately, so did the Court of Appeals.<\/p>\n

In ruling in favor of Mr. Long on this case of first impression, the Court of Appeals held that in order for a website\u2019s Terms of Use to be enforceable against a user, the \u201cplacement, color, size and other qualities relative to the\u2026website\u2019s overall design\u201d must make the hyperlink for the Terms of Use conspicuous enough so as to put a reasonable user on notice of its existence. In other words the link to the terms of use must be open and obvious to even the most casual, technically-limited user of the website.<\/p>\n

With respect to Proflowers.com, the Court of Appeals took issue with the location and color of the Terms of Use link, as well as the other elements around it that the Court believed hid the link or at least distracted the user from discovering its existence. In fact, the Court specifically noted that it was difficult to find the link for the Terms of Use even when the Court was specifically looking for it.<\/p>\n

This result is not necessarily surprising, given that it is simply an extension of existing contract law to \u201cdigital\u201d contracts \u2013 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\u2019t even know that a contract exists.<\/p>\n

Websites may need to instruct users about the effect of the Terms of Use<\/strong><\/p>\n

What is somewhat surprising, however, are the comments by the Court of Appeals that it made after finding that the link was too hidden. The Court of Appeals stated that \u201ca textual notice should be required to advise consumers that continued use of a website will constitute the consumer\u2019s agreement to be bound by the website\u2019s terms of use\u201d and subsequently warned online retailers that they \u201cwould be well-advised to include a conspicuous textual notice within their terms of use hyperlink going forward.\u201d<\/p>\n

Though this is merely dicta, since the Court of Appeals declined to actually rule on this particular issue, it nonetheless places all website owners and designers on notice that not only must the existence of terms of use be open and obvious, but in order for them to be enforceable the website may also have to notify a user that his her or her continued use of the website requires an agreement to be bound by the terms of use<\/p>\n

Websites must be update their approach to their Terms of Use<\/strong><\/p>\n

So what does this mean for website designs?<\/p>\n

First, this means that websites must do more to draw a user’s attention to the Terms of Use. This is important from a legal perspective because the Terms of Use are put there specifically to protect the owner of the website from potential litigation down the road, such that you can’t just ignore the Court of Appeals’ ruling and keep your websites as is.<\/p>\n

However, given that really the only standard right now is that the display of the Terms of Use must be better than Proflowers.com in order to be enforceable, the Court of Appeals did not offer much practical guidance other than to say that the placement, size, color, and \u201cother stuff\u201d must make the Terms of Use \u201creasonably conspicuous.\u201d Real helpful, right?<\/p>\n

Perhaps the best litmus test is simply this: call up that friend or family member who hates technology and doesn\u2019t like using the internet and cajole him or her to visit your website and look around for sixty seconds. Afterwards, ask them if they noticed the \u201cTerms of Use\u201d \u2013 or whatever else you may call it \u2013 on your webpage. If the answer is yes, you\u2019re probably good to go; if not, you might consider changing something about the Terms of Use. Whether that\u2019s by moving its location, making it larger, making the font darker, or even de-cluttering your webpage so that every element (including the Terms of Use) stands out more, it\u2019s ultimately up to the website designer to find a balance between making the Terms of Use open and obvious while still maintaining a well-designed and aesthetically pleasing website (e.g. please don\u2019t make it hot pink in size 128 font).<\/p>\n

This trickier part is this: how do you make sure that all users know that they will be bound by the Terms of Use, and therefore should read the Terms of Use but, more importantly, do so in a manner that doesn\u2019t annoy or alienate the user? For example, a pop-up window telling the user to read the Terms of Use would certainly give the user notice but would also certainly annoy or even drive away users. This is all-the-more true since more and more users are using their mobile devices and apps to access your website content on a smaller screen and for shorter periods of time, which serves to only further restrict your ability to cleanly give the user notice.<\/p>\n

Although there is no clear answer without further guidance from the Court of Appeals, it remains clear that this needs to be both a legal and design solution. The legal solution will have to find a way give the average user reasonable notice of both the Terms of Use and the effect of the Terms of Use while the design solution must find a way to maintain the aesthetics and design vision of both the website and the company it reflects. You need both, however, to ensure that you are better protected from legal challenges from users in the future and<\/em> that you’ll still actually have users in the future.<\/p>\n

———————————<\/p>\n

If you\u2019re 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":1342,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/358"}],"collection":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=358"}],"version-history":[{"count":15,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/358\/revisions"}],"predecessor-version":[{"id":401,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/358\/revisions\/401"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/media\/1342"}],"wp:attachment":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=358"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=358"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=358"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}