Prior to Long v. Provide Commerce, no California appellate court had addressed the necessary website design elements to determine the validity of a browsewrap agreement in the absence of actual notice. Relying on the long-standing rule of California law that “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious” Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal.App.3d 987, 993 (1972), the Court agreed with Long. When applied to the hyperlinks used on the ProFlowers.com website, the Court found that
Long, at p. 2.
Because the Long Court did not need to go beyond the inconspicuous nature of Provide’s hyperlinks, it did not need to address whether California would adopt the browsewrap rule adopted by the Ninth Circuit in Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1178-79 (9th Cir. 2014):
Although the Long Court did not resolve whether California law would require “something more,” it concluded that
Long, at p. 14.
Forewarned is forearmed.