Ninth Circuit Finds Browsewrap Arbitration Clause Unenforceable Despite Conspicuous Link
The Ninth Circuit affirmed the district court’s decision and concluded that the plaintiff was not bound by the arbitration clause in the online Terms. Although the circuit court reached its decision under New York law, it noted that “both California and New York law dictate the same outcome.”
The Ninth Circuit explained that contracts formed on the internet typically are of two types – “clickwrap” agreements, where users are required to click “I agree” after being presented with the terms, and “browsewrap” agreements, where the website’s terms are generally posted on the website as a hyperlink at the bottom of the screen.
The Ninth Circuit clearly stated its holding:
The Ninth Circuit also explained that the plaintiff’s general familiarity with browsewrap agreements on other sites had no bearing on whether the plaintiff had constructive notice of the browsewrap agreement on the site at issue.