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Court Rejects CA's First 'Browsewrap' Case

By Jonathan R. Tung, Esq. on March 28, 2016 | Last updated on March 21, 2019

The California Court of Appeal just adjudicated a browsewrap case on the merits that will now be considered the current benchmark case in the ever murky issue of web-user assent.

Hopefully this case will help to clarify the design elements that must be present for every webpage owner in order to ensure that their users get the notice needed for the applicable Terms of Use.

Browsewrap Explained

Browsewrap is an umbrella term that generally refers to a contractual agreement or license agreement that covers a user or browser's access to materials on a website. Other "wrap" agreement types in this area include the click-wrap agreement and the shrink-wrap agreement.

Browsewrapping Flowers?

The plaintiff in this case ordered "completely assembled" flowers from ProFlowers.com, but rather than being completely assembled, he received a "do-it-yourself kit in a box." He sued ProFlowers and formed a putative class to do it. ProFlowers moved to compel arbitration according to the site's Term of Use -- which was kind of hidden.

The plaintiff alleged that despite being required to input all of his financial information to complete the order, the company never asked him to affirmatively assent to the website terms as a condition of completing the order. What is material to the facts is that although the terms of use were actually technically on the page, the hyperlink was lime green text on a lime green background -- hardly "sufficiently conspicuous" in the eyes of the court. It was the same story with the plaintiff's confirmation email which contained the links "Privacy Policy" and "Terms of Use" is the same lime-green-on-lime-green format.

Not "Sufficiently Conspicuous"

The California appellate court determined that ProFlower's hyperlinks were not "sufficiently conspicuous" enough to put a "reasonably prudent internet consumer" on inquiry notice that he was about to be bound by contract terms. In fact, the opinion strongly intimated that even a conspicuous hyperlink to the website's Terms of Use might not be enough to guarantee that the users were given sufficiently reasonable notice. And if there was no sufficient notice, then there can be no assent.

Unfortunate Lingo?

There is some dispute online as to whether or not the nomenclature of browsewrap unfairly mischaracterized the nature of tendering assent and acceptance. The legal status and acceptability of shrink-wrap agreements has ambiguous status in United States Courts, one of the most obvious issues being a lack of means for a purchaser to manifest assent to the terms of the contract. The name suggests that assent is manifested as soon as the user breaks the shrink wrap -- in the old days one of the more popular ways to loop users into EULAs.

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