Long v. Provide Commerce, Inc.
245 Cal. App.4th 855 (2016)
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Rule of Law:
For a browsewrap agreement to be enforceable, the website must provide a reasonably prudent user with inquiry notice of its terms. A hyperlink to the terms, standing alone, is insufficient to provide such notice if its placement, color, size, and other design elements make it inconspicuous to the user.
Facts:
- Brett Long purchased a floral arrangement from Provide Commerce, Inc. through its website, ProFlowers.com.
- Long alleged the arrangement, advertised as a completed product, was delivered as a do-it-yourself kit.
- The ProFlowers.com website contained a hyperlink titled 'TERMS OF USE' at the bottom of each page.
- The hyperlink was displayed in a light green typeface on the website's lime green background, alongside 14 other similar hyperlinks.
- During the multi-page checkout process, the 'TERMS OF USE' hyperlink was located below the main content box containing the order fields and buttons, a security logo, and a site feedback bar.
- Long declared that he did not notice the hyperlink to the 'Terms of Use' when he made his purchase.
- The Terms of Use, if accessed, contained a provision requiring binding arbitration for all legal disputes.
- Provide Commerce sent Long an order confirmation email which also contained a hyperlink to the 'Terms', but it was in small grey typeface near the bottom of the message after order details, advertisements, and other links.
Procedural Posture:
- Brett Long sued Provide Commerce, Inc. in California superior court (trial court) on behalf of himself and a putative class, alleging consumer fraud.
- Provide Commerce filed a petition in the trial court to compel arbitration, based on the arbitration clause in its website's Terms of Use.
- Long opposed the petition, arguing he had not seen or assented to the Terms of Use.
- The trial court denied Provide Commerce's petition to compel arbitration, concluding the hyperlinks to the terms were too inconspicuous to bind Long.
- Provide Commerce, as appellant, appealed the trial court's order to the California Court of Appeal, with Long as the respondent.
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Issue:
Does a consumer's use of a commercial website constitute assent to be bound by the site's terms of use, including an arbitration clause, when the terms are accessible only via an inconspicuous hyperlink at the bottom of the page?
Opinions:
Majority - Jones, J.
No. A consumer's use of a commercial website does not constitute assent to be bound by the site's terms where the hyperlink to those terms is not conspicuous enough to put a reasonably prudent user on inquiry notice. To form a contract, there must be mutual assent, which for browsewrap agreements requires that the user have actual or constructive knowledge of the terms. Since Plaintiff Long had no actual knowledge, the enforceability of the agreement hinges on whether he had constructive knowledge. The court found that the 'TERMS OF USE' hyperlink on ProFlowers.com was inconspicuous due to its placement far below the user's primary area of focus, its color scheme that blended with the background, and its context among numerous other links. Citing Nguyen v. Barnes & Noble, the court reasoned that the mere proximity of a hyperlink is insufficient; website owners must put users on notice of the terms to which they wish to bind consumers. The design of the ProFlowers.com checkout flow tended to conceal the fact that placing an order constituted acceptance of the terms, thus failing to provide the reasonably conspicuous notice required for an enforceable browsewrap agreement.
Analysis:
This decision solidifies the standard for enforcing browsewrap agreements in California, aligning with the influential Ninth Circuit opinion in Nguyen. It clarifies that mere accessibility or technical visibility of a terms of use hyperlink is not sufficient; the link must be 'reasonably conspicuous' in its total visual context to impart constructive notice. The ruling places a heavier burden on online businesses to actively draw consumers' attention to their binding terms, suggesting that a simple hyperlink without an accompanying textual notice (e.g., 'By continuing, you agree to our Terms of Use') is legally risky. This precedent significantly enhances consumer protection in online transactions by preventing users from being unknowingly bound by terms they had no reasonable opportunity to discover.
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