Thou Shalt Not Make Your Customers Search For Your Website's Terms of Use: Long v. Provide Commerce, Inc.

If you use a website in your business venture, especially if you sell products or services online, you are probably already aware of the importance of thoughtful and well drafted terms of use for your website and your commercial activity.  Yet, a  page setting forth such terms of use - regardless of its scope and clear prose - only matters if it has been acknowledged and accepted by the user.  For years, many business owners have assumed that the use of a website automatically results in the acceptance of the terms of use that are available on that website.  As this month’s recent decision by the California Court of Appeals in Long v. Provide Commerce, Inc. demonstrates, however, assumptions can be dangerous.

In Long, the Court addressed the issue of what conditions must be met to turn the terms of use into a binding agreement when a user is not given the opportunity to affirmatively click a button to confirm acceptance.  See Long v. Provide Commerce, Inc., B257910 (2nd Appellate District, March 17, 2016). 

Defendant Provide Commerce, Inc. (“Provide”) operates a website, ProFlowers.com, that sells floral arrangements to consumers through its online store.  As should any responsible business owner who operates a commercial website, Provide had drafted terms of use to govern those who used its website.  Provide made them available to users of the website through a hyperlink displayed at the bottom of each page of the website. Among Provide’s terms of use was the provision that all disputes between Provide and its customers were to be adjudicated through binding arbitration, rather than in court.  When one of its former customers, Brett Long, filed a class action against Provide in California state court on behalf of a purported class of California consumers, Provide filed a petition with the court to compel arbitration in accord with the Terms of Use.  

Provide contended that its Terms of Use constituted a “browsewrap” agreement, to which a user’s assent is inferred from his or her use of the website.  Because it was undeniable that Long used the website and that the Terms of Use were available from the website, Provide argued, the browsewrap agreement governed and arbitration was required.  In particular, Provide made its Terms of Use available through a capitalized and underlined hyperlink titled “TERMS OF USE” on the bottom of every page of its website.  The hyperlink and 14 other hyperlinks of the same color (light green), font, and size were placed against website’s lime green background.  In addition, a link to “TERMS OF USE” (with the same light green font against a lime green background) were visible at the bottom of Provide’s checkout flow webpages.  In addition, Provide sent a confirmation email to its customers that displayed in small grey typeset at the bottom of the e-mail - below the presentation of Provide’s logos for its brand families and above only Provide’s corporate address.

Not surprisingly, Long disagreed with Provide.  He argued that because he was never prompted to assent or reject the Terms of Use and because he had never read the Terms of Use prior to placing his order, no agreement was reached and the browsewrap agreement was not enforceable.  Thus, he was under no requirement to seek arbitration.

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 

“the hyperlinks and the overall design of the ProFlowers.com website would not have put a reasonably prudent Internet user on notice of Provide’s Terms of Use, and Plaintiff therefore did not unambiguously assent to the subject arbitration provision simply by placing an order on ProFlowers.com.” 

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):  

“[W]here 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.”

Typically this “something more” takes the form of explicit textual notice calling for users to review terms or informing users that by clicking buttons to complete a transaction they are agreeing to the Terms of Use of the website/agreement.

Although the Long Court did not resolve whether California law would require “something more,” it concluded that

“in our view the bright line rule established by Nguyen is necessary to ensure that Internet consumers are on inquiry notice of a browsewrap agreement’s terms, regardless of each consumer’s degree of technological savvy. Online retailers would be well-advised to include a conspicuous textual notice with their terms of use hyperlinks going forward.”

Long, at p. 14.

If you operate a commercial website, you would be well advised to review your terms of use and - more importantly - how you present them to your users.

Forewarned is forearmed.