Operators of social media platforms and other websites must manage a large number of risks arising from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks, website operators routinely present users with terms of use or terms of service (“Website Terms”) that purport to govern access to and use of the relevant website and include provisions designed to protect the website operators, such as disclaimers, limitations of liability and favorable dispute resolution provisions. But are such Website Terms enforceable against users and do they actually provide the protection that website operators seek? The answer may well depend on how the Website Terms are implemented.

Clickwrap vs. Browsewrap

Website Terms typically come in two flavors: “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the website, and “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.

For example, in Fteja v. Facebook, Inc. (S.D.N.Y. 2012), the plaintiff claimed that Facebook disabled his Facebook account without justification and for discriminatory reasons, causing emotional distress and harming his reputation. Facebook moved to transfer the case to federal court in Northern California based on the forum selection clause in the Facebook terms of use, but the plaintiff claimed that he had never agreed to the terms of use. The court concluded that the plaintiff was bound by the Facebook terms, however, because he had checked a box indicating his acceptance when he registered for Facebook.

In contrast, Barnes & Noble had less luck enforcing its terms of use in Nguyen v. Barnes & Noble, Inc. (9th Cir. August 18, 2014). In Nguyen, the plaintiff ordered a tablet from Barnes & Noble at a discounted price but Barnes & Noble canceled his order. The plaintiff sued and Barnes & Noble moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The court held that Barnes & Noble’s terms could not bind the plaintiff, despite being presented through a “conspicuous” link during the checkout process, because Barnes & Noble did not prompt users to affirmatively assent to the terms.


Continue Reading Implementing and Enforcing Online Terms of Use

In Kevin Khoa Nguyen v. Barnes & Noble Inc., 2014 U.S. App. LEXIS 15868 (9th Cir. 2014), decided on August 18, 2014, the Ninth Circuit rejected an attempt to bind a consumer to an arbitration clause found in an online terms of use agreement not affirmatively “click accepted” by the consumer but readily accessible through a hyperlink at the bottom left of each page on the subject website.

The case arose from a “fire sale” by defendant Barnes & Noble of certain discontinued Hewlett Packard TouchPads. Plaintiff Nguyen had ordered two of the TouchPads, but received a notice from Barnes & Noble the following day that his order had been cancelled due to unexpectedly high demand. Nguyen sued Barnes & Noble in California Superior Court on behalf of himself and a putative class, arguing that he was forced to buy a more expensive tablet instead.

Barnes & Noble, after removing the suit to federal court, moved to compel arbitration under the Federal Arbitration Act, arguing that, by using the Barnes & Noble website, Nguyen had agreed to an arbitration clause contained in Barnes & Noble’s Terms of Use. Nguyen responded that he could not be bound to the arbitration clause because he had no notice of and did not consent to the Terms of Use. Barnes & Noble countered that the placement of the Terms of Use hyperlink on its website had given Nguyen constructive notice of the arbitration clause.


Continue Reading To Click or Not to Click? Ninth Circuit Rejects Browsewrap Arbitration Clause

Earlier this year, the French consumer association UFC-Que Choisir initiated proceedings before the Paris District Court against Google Inc., Facebook Inc. and Twitter Inc., accusing these companies of using confusing and unlawful online privacy policies and terms of use agreements in the French versions of their social media platforms; in particular, the consumer association argued that these online policies and agreements provide the companies with too much leeway to collect and share user data.

In a press release published (in French) on its website, UFC-Que Choisir explains that the three Internet companies ignored a letter that the group had delivered to them in June 2013, containing recommendations on how to modify their online policies and agreements. The group sought to press the companies to modify their practices as part of a consumer campaign entitled “Je garde la main sur mes données” (or, in English, “I keep my hand on my data”).

According to the press release, the companies’ refusal to address UFC-Que Choisir’s concerns prompted it to initiate court proceedings. The group has requested that the court suppress or modify a “myriad of contentious clauses,” and alleged that one company had included 180 such “contentious clauses” in its user agreement.

The group has also invited French consumers to sign a petition calling for rapid adoption of the EU Data Protection Reform that will replace the current Directive on data protection with a Regulation with direct effects on the 28 EU Member States. UFC-Que Choisir published two possibly NSFW videos depicting a man and a woman being stripped bare while posting to their Google Plus, Facebook and Twitter accounts. A message associated with each video states: “Sur les réseaux sociaux, vous êtes vite à poil” (or, in English, “On social networks, you will be quickly stripped bare”).
Continue Reading French Consumer Association Takes on Internet Giants

The latest issue of our Socially Aware newsletter is now available here. In this issue, we explore legal concerns raised by Google Glass; we provide an overview of the growing body of case law addressing ownership of business-related social media accounts; we take a look at two circuit court decisions addressing the interplay between

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Morrison & Foerster’s Sherman Kahn Interviews American Arbitration Association Vice President, Sandra Partridge

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