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California Court Finds "Browsewrap" Agreement Unenforceable

March 31, 2016

So-called “browsewrap” agreements, common on e-commerce websites, are not enforceable, according to a recent decision by the California Court of Appeal for the Second Appellate District. Fenwick partner Eric Ball spoke with Corporate Counsel about the decision.

“More and more courts are saying that a browsewrap agreement is not binding,” Ball told Corporate Counsel. “If you just have a hyperlink down at the bottom (of a web page), it’s likely that is not going to be a binding agreement on the user unless the user has actual knowledge of it.”

Browsewrap agreements are typically found at the bottom of e-commerce sites, often in a “Terms of Use” section that appears when a hyperlink is clicked. They differ from “clickwrap” agreements, in which a purchase cannot proceed unless the buyer clicks on an “I agree” or “I accept” box.

The case in question involved a suit brought by a California man who purchased a flower arrangement online from ProFlowers.com. When the arrangement arrived, it was not what he expected, and he sued Provide Commerce Inc., owner of ProFlowers.com. Provide claimed the customer was bound by the website’s terms of use, available through a hyperlink at the bottom of the web page.

The customer disagreed, and the court agreed with him.