Mark Pestronk
Mark Pestronk

Q: In a Legal Briefs column in the Jan. 7, 2019, issue of Travel Weekly ("Add a click to ensure users are aware of terms before booking"), you wrote, "In case after case, judges have been ruling that merely posting the terms on the website is not sufficient." The cases you cited upheld the website's terms and conditions because the consumer had to click an "I agree" button or the like. Have there been any recent court precedents actually striking down a website's terms and conditions because of a lack of evidence of consent, or is agreement just assumed these days because everyone knows that every website has terms and conditions that bind you when you use the website?

A: I agree that nearly everyone knows that interactive websites have terms and conditions (T&C), but a user's assent is not just assumed. To bind the user, more is required.

The case that will undoubtedly turn out to be one of the most important precedents about website T&Cs was just decided by the U.S. Court of Appeals in San Francisco. In Wilson v. Huuuge Inc., which was issued on Dec. 20, the court held that the user was not bound by an arbitration clause in the T&C because he was not given "reasonable notice" of the T&C. The case dealt with a phone app, but it is applicable to websites, as well.

In that case, the court's opinion said, the T&C were hidden away so well that "the user would need Sherlock Holmes' instincts to discover the Terms."

The court stated, "The Terms are not just submerged, they are buried 20,000 leagues under the sea. ... To find a reference, a user would need to ... scroll through multiple screen-lengths of similar-looking paragraphs. Once the user unearths the paragraph referencing the Terms, the page does not even inform the user that he will be bound by those terms."

The court held that whether the user has "reasonable notice" depends on whether T&C are "conspicuously placed." In addition, based on the court's discussion, it appears that the T&C must also inform the user that he will be bound by them.

The court cites another recent case holding that "where the link to a website's terms of use is buried at the bottom of the page or tucked away in obscure corners of the website," the placement is not conspicuous. This reference may call into question the validity of the typical travel website's link at the bottom of the homepage.

The problem is that criteria such as "reasonable notice," "conspicuous notice" and "conspicuously placed" are too vague and subjective to depend on, despite the court's guidance. If you have an interactive website such as an online booking capability, you need to get every user's affirmative agreement by having him click an "I agree" button or the like.  

You also need to specify that your T&C will form a binding agreement, so that the user cannot argue that the T&C are a mere policy. Ideally, rename your T&C by calling it something like "Your Agreement with ABC Travel" and use that term on your homepage.

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