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Judge Weinstein of the District Court for the Eastern District of New York has described the four general types of online contracts. These are: (1) Browsewrap; (2) Clickwrap; (3) Scrollwrap; and (4) Sign-in-wrap agreements. Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 394-402 (E.D.N.Y. 2015). Briefly summarized:
Browsewrap agreements "can take various forms but basically the website will contain a notice that—by merely using the services of, obtaining information from, or initiating applications within the website—the user is agreeing to and is bound by the site's terms of service." United States v. Drew, 259 F.R.D. 449, 462 n.22 (C.D. Cal. 2009). Because of the passive nature of acceptance in browsewrap agreements, courts closely examine the factual circumstances surrounding a consumer's use. "Despite their ubiquity, browsewrap agreements are still relatively new to courts." Be In, Inc. v. Google Inc., No. 12-CV-03373, 2013 U.S. Dist. LEXIS 147047, 2013 WL 5568706, at *7 (N.D. Cal. Oct. 9, 2013). For an internet browsewrap contract to be binding, consumers must have reasonable notice of a company's "terms of use" and exhibit "unambiguous assent" to those terms. Specht, 306 F.3d at 35; see also Be In, 2013 WL 5568706, at *6-8 (collecting cases). Clickwrap agreements "necessitate an active role by the user of a website. Courts, in general, find them enforceable. Drew, 259 F.R.D. at 462 n.22. "Clickwrap agreements require a user to affirmatively click a box on the website acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website." Id. By requiring a physical manifestation of assent, a user is said to be put on inquiry notice of the terms assented to." Scrollwrap agreements requires users to physically scroll through an internet agreement and click on a separate "I agree" button in order to assent to the terms and conditions of the host website. Sign-in-wrap agreements couples assent to the terms of a website with signing up for use of the site's services. Contact Mark D. Walters Comments are closed.
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