Unless the website prominently discloses that use of the site constitutes agreement to its terms, a “browsewrap” disclosure of terms is insufficient to bind the user to the arbitration clause in the site’s terms. This decision follows Nguyen v. Barnes & Noble, Inc. (9th Cir. 2014) 763 F.3d 1171 and Specht v. Netscape Communs. Corp. (2d Cir. 2002) 306 F.3d 17 in holding that a customer is not bound by the terms and conditions of use of an Internet website when the website uses the browsewrap method—i.e., does not require an express act of acceptance from the user—unless the website prominently warns the user that simply by using the site the user agrees to the terms and conditions. Here, the terms and conditions could be accessed by clicking reasonably noticeable hyperlinks to a different webpage, but there was no prominent notice that use meant agreement to those terms, so the user was not bound by them. Accordingly, the website owner’s motion to compel arbitration was properly denied as was its attempt to rely on the forum selection provision in its terms and conditions. Neither provision was enforceable because the user could not be shown to have agreed to them.
California Court of Appeal, Second District, Division 3 (Jones, J.); March 17, 2016; 2016 WL 1056555