It is a familiar issue. When should a consumer “be on the hook” for all of the terms and conditions in a company’s agreement accompanying its product or service?

The permeations relating to this problem are extensive. Are all of the terms buried in the fine print enforceable?  Does the consumer ignore such terms at his or her peril when the consumer fails to read the agreement?  Is it enough that the customer was given a chance to read the terms at the time of purchase? What manner or degree of consent is enough to bind the consumer to the letter of the written terms?  These are all problems of contract formation.  The question of acceptance of terms and conditions is especially tricky in the context of online commerce.

The California Court of Appeal (Second District) recently considered this issue as it relates to the “terms and conditions” or “terms of use” to which users are often asked to agree as part of an online purchase. The court’s decision in Long v. Provide Commerce, Inc., dealt with an appeal by Provide Commerce, Inc., the operator of ProFlowers.com.  See Long v. Provide Commerce, Inc. (Cal. Ct. App. Mar. 17, 2016) 2016 WL 1056555, at *1.  After a customer sued over an online purchase, the Internet-based flower purveyor sought to enforce a clause in the company’s “Terms of Use” that required its customer to arbitrate disputes, including a waiver of the right to a jury trial.

The type of online terms and conditions used by ProFlowers is often known as a “browsewrap” agreement. With that type of agreement, a user does not have to affirmatively click anything to signal his or her consent to the terms of the company’s written agreement.  Rather, “a user’s assent is inferred from his or her use of the website.” Long, supra, at *1.

At the time the plaintiff placed his order, the website’s “Terms of Use” could be found by clicking on a capitalized and underlined hyperlink at the bottom of each web page on the ProFlowers.com site. The court noted that the “hyperlink was displayed in what appears to have been a light green typeface on the website’s lime green background, and was situated among 14 other capitalized and underlined hyperlinks of the same color, font and size.” Long, supra, at *2.  The “Terms of Use” were also accessible by a hyperlink embodied in an email order confirmation, though the link was in small grey font toward the very bottom of the email and relatively obscured by other information and links.

The court observed that while Internet commerce presents new issues, it does not fundamentally alter the key requirement that for a party to be bound by a contractual provision, there must be a sufficient manifestation of consent. In the context of a “browsewrap” agreement, the courts have held that “the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of a website’s terms and conditions.” Long, supra, at *4 (quoting the federal Ninth Circuit Court of Appeal’s decision in Nguyen v. Barnes & Noble Inc. [(9th Cir. 2014) 763 F.3d 1171]).  In the absence of actual notice, the validity of the browsewrap agreement “turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract.” Id.

The court noted the elements that the courts have considered in deciding whether to conclude that a website design puts the user on sufficient notice of the company’s terms and conditions, including the proximity of the hyperlink (linking to the written terms) to the areas likely to be in view of the user as he or she interacts with the website and completes the transaction and whether the website design includes “something more to capture the user’s attention and secure her assent” to the terms and conditions. Long, supra, at *5.

Here, the court found that the hyperlinks and the overall design of the ProFlowers.com website failed to put a reasonably prudent Internet user on notice of the company’s Terms of Use. The court found that the placement, color, size and other qualities of the hyperlinks to the Terms of Use were too inconspicuous, relative to the overall website design.  Most of the user’s interactions were in a separate bright white box in the center of the page that contrasts sharply with the lime green background.  To find the Terms of Use hyperlinks on various pages, the user must look below the area that has the information fields and the buttons he or she must otherwise click to proceed with the transaction.  Even then, the hyperlinks themselves are buried below multiple other links and in a light green font that blends in with the lime green background of the website.

The lesson for the day is that conspicuousness means conspicuousness. If no affirmative user click is required demonstrating the user’s consent to the terms and conditions, the website design should ensure that a link to a terms and conditions page will be hard to miss.  The visual prominence of the link is key.  Avoid having the link situated in a submerged page (i.e., where the user must scroll down to see it).  Certainly avoid having the link be in a font difficult to distinguish from the webpage background.  The link should be in what one would expect to be the plain view of the user as he or she interacts with the site.

Sure, there are lots of viral YouTube videos.  There’s Katy Perry’s left shark, the owls dance off  and of course the kitten sup-purr bowl, but it might surprise you to learn that YouTube removed a video for being too popular.

That’s right, YouTube removed a music video of “Luv Ya Luv Ya Luv Ya” (“Luv Ya³”) by the alternative rock group Rasta Rock Opera, claiming it had become too popular through nefarious means.  A search for the video now results in the YouTube equivalent of  Microsoft’s blue screen of death.

YouTube alleged that Rasta Rock Opera’s distributor, Song Fi, gamed the music video’s “view count” by using robots or spiders (sounds like a David Bowie song) to ring up more views more quickly than was humanly possible.

Song Fi denied gaming the system and sued YouTube, and its parent Google, in the Federal Court for the District of Columbia.  Song Fi later amended its suit, adding a six year old who appeared in the music video, N.G.B., as a named plaintiff.  N.G.B. and his musical posse alleged breach of contract, libel, tortious interference with business relationships.  Plaintiffs’ Complaint alleges that YouTube discriminates against small, independent artists, while allowing major music labels to use spiders and robots to inflate view counts for “artists” like Psy (Gangnam Style) and Justin Bieber.  Plaintiffs sought a preliminary injunction ordering YouTube to restore Luv Ya³ along with its prior view count of over 23,000 views.  YouTube responded with motions to dismiss or to transfer the case to the Federal Court in Northern California.  The D.C. Court granted YouTube’s motion to transfer pursuant to the venue selection clause on YouTube’s terms of use, but denied, without prejudice, Plaintiffs’ motion for a preliminary injunction and YouTube’s motion to dismiss.

While not ruling on the merits of Plaintiffs’ claims, the D.C. Court showed some sympathy to Plaintiffs’ libel claim regarding YouTube’s posting that “[t]his video has been removed because its content violated YouTube’s Terms of Service.” While recognizing that YouTube’s terms of use prohibit the use of spiders and robots, the Court stated that “it seems to me that [false counts] are not content.”   In fact, the Court told the YouTube attorney she thought he should “take this back to your client and your client should rewrite the contract.”  If the California court agrees, YouTube may not be able to hide behind its current terms of use.

Of course, N.G.B. and the other Plaintiffs may have already won, as they stand to gain as much or more notoriety by suing YouTube/Google and having bloggers blog about it, as they do by posting music videos featuring six year olds.