Browsing Isn't a Virtual Handshake Deal

By show of hands, how many people actually read on-line terms and conditions before clicking “I agree”? I don’t have to see you to conclude that no one raised their hands. If you did, you can stop reading here. If you didn’t raise your hand, do you ever wonder what you’re agreeing to? How about the websites who tell you that you’re bound by the terms and conditions just for browsing. Is that enforceable? A recent case in the 9th Circuit Court of Appeals, Nguyen v. Barnes & Noble, Inc., answered that question. Nguyen bought a discounted tablet device from Barnes and Noble’s website. When B&N ran out of stock, Nguyen cancelled the order and sued for deceptive trade practices and false advertising. B&N said that Nguyen couldn’t sue because the website was governed by a browse wrap license that required arbitration. A browse warp license is basically a license to browse the website. The court sided with Nguyen. The browse wrap license had two primary problems. First, the customer didn’t have proper notice of the license. Second, the website didn’t have a way for the customer to take a positive step to accept the terms. So B&N had to defend the lawsuit in court and couldn’t require arbitration.

TAKE AWAY: This case is particularly instructive for e-commerce websites. A typical e-commerce website invites customers to browse and then buy. Back in the dark ages, before the Internet, this kind of relationship often involved a written agreement that everyone had to sign. The equivalent for commerce over the Internet has developed over time. Now, you can post your contractual terms and conditions on your website. But, it looks like you need to go a couple of steps further to make it a binding contract. If you want to avoid B&N’s result, then you have to give your customer notice and an opportunity to accept the terms and conditions.