Browsewrap Risks.
Browsewrap Agreements
A browsewrap agreement is a type of online contract where the terms and conditions are posted on a website, typically accessible via a hyperlink at the bottom of a page. Users do not need to actively click “I agree”; merely using the site may indicate acceptance.
Key Features:
No affirmative consent (unlike clickwrap agreements).
Terms are generally available via hyperlink.
Relies on constructive notice to bind users.
Common Examples:
E-commerce websites with terms linked at checkout.
Software or app download pages with terms at the bottom.
Free online services with legal disclaimers in footers.
Legal Risks Associated with Browsewrap Agreements
Enforceability Risk
Courts scrutinize whether the user had actual or constructive knowledge of the terms.
Mere presence of a hyperlink may be insufficient.
Notice and Accessibility
Terms must be conspicuous, not buried or hidden.
Users must reasonably see and understand the terms before using the service.
Click or Consent Requirement
Unlike clickwrap agreements, no explicit consent is required, leading to disputes.
Jurisdictional Risks
Courts in different jurisdictions may apply different standards of notice and assent.
Consumer Protection
In many countries, unfair contract terms statutes may invalidate browsewrap clauses if the user is not reasonably aware.
Limitation of Liability and Arbitration Clauses
Such clauses are frequently challenged for unenforceability due to inadequate notice.
Significant Case Laws
1. Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002)
Issue: Users downloaded software without seeing terms located below the “Download” button.
Holding: Court held that users were not bound because they did not have actual or constructive notice.
Principle: Browsewrap agreements require that the terms are reasonably conspicuous and that users have notice.
2. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014)
Issue: Users browsing the website argued they were not bound by terms linked at the bottom.
Holding: Court ruled the browsewrap agreement unenforceable due to lack of user awareness and insufficient notice.
Principle: Mere website use does not constitute assent to hidden terms.
3. Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012)
Issue: Users claimed Facebook’s terms of service were binding without explicit agreement.
Holding: Court found browsewrap-style terms may be binding if clearly visible and users had actual or constructive knowledge.
Principle: Placement, font size, and visibility affect enforceability.
4. Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)
Issue: Unauthorized bulk access to website; defense claimed browsewrap agreement was invalid.
Holding: Court enforced terms because Verio had actual notice of terms and continued to access.
Principle: Knowledge plus continued use can establish enforceable assent.
5. Zappos.com, Inc. v. S. Powell (D. Nev. 2009)
Issue: Dispute over arbitration clause in browsewrap terms.
Holding: Court emphasized that terms must be reasonably conspicuous to bind users.
Principle: Arbitration clauses in browsewrap agreements may fail if users were unlikely to see the link.
6. Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096 (C.D. Cal. 2007)
Issue: Automated scraping of Ticketmaster website; reliance on browsewrap terms limiting use.
Holding: Court enforced the terms because defendant had actual knowledge of terms before continuing conduct.
Principle: Constructive knowledge plus continued use can create binding obligations.
Key Takeaways / Risk Mitigation
Make Terms Conspicuous
Hyperlink should be clearly visible, not buried in footers.
Encourage Active Assent
Consider clickwrap or sign-in prompts for critical clauses.
Use Layered Notices
Display key terms upfront, with full terms accessible via link.
Document User Knowledge
Logs, IP records, or acknowledgment screens can support enforcement.
Consumer-Friendly Design
Avoid “hidden” or hard-to-find disclaimers to reduce risk of invalidation.
Review for Jurisdiction
Different courts have different thresholds for notice and assent.
Conclusion
Browsewrap agreements are convenient but legally risky, especially for terms limiting liability, arbitration clauses, or intellectual property rights. The enforceability depends on user notice, visibility, and reasonable opportunity to assent. Courts consistently enforce browsewrap agreements only when users are aware or have constructive knowledge of terms and continue to use the service.
RELATED Blog
comments