Purchasing Flowers Ends In Reforming Browsewrap Agreements

A California Court of Appeal has taken its first stance on the website design requirements necessary for an enforceable browsewrap agreement. On March 17, 2016 the Court of Appeal affirmed the California Superior Court of Los Angeles County's denial of a petition to compel an arbitration clause in what is commonly referred to as a "browsewrap" agreement. A browsewrap agreement is a set of terms for using a website that does not require users to click a button confirming their assent. Instead, a user's assent to the terms of use is assumed by his or her continued use of the website.

In this case, the Court of Appeal determined that the hyperlinks to ProFlowers.com's Terms of Use and the overall design of the website would not put a reasonably prudent Internet user on notice of the terms, and that the Plaintiff did not unambiguously assent to the arbitration provision simply by placing an order on the website. Thus, the terms were not binding, and arbitration could not be compelled. See Long v. Provide Commerce, Inc., No. B257910 (Cal. Ct. App. Mar. 17, 2016) ("Long").

What is the Root Concern with "Browsewrap" Agreements?

Browsewrap agreements are common in online retailing as a tool to reduce the transaction time required for online purchases while simultaneously providing the user with information about the terms of the sale. Because a user may not actually read a browsewrap agreement, the validity of a browsewrap agreement turns on whether, in using the website, the user should have known that she was agreeing to a contract about her use of the website.

The Facts Bloom Before the Court

Defendant Provide Commerce, Inc. operates the floral arrangement website, ProFlowers.com, where Plaintiff Brett Long purchased a flower arrangement that he contends was different than advertised. Long then filed a consumer fraud class action lawsuit against Provide Commerce. Provide Commerce petitioned to compel arbitration on the basis of an arbitration provision in the company's browsewrap agreement on the ProFlowers.com website. The browsewrap agreement was viewable to consumers by clicking a hyperlink entitled "Terms of Use" that was displayed at the bottom of each page of the website. Long alleged that he was not bound by the provisions of the ProFlowers.com Terms of Use, because he was never prompted to agree to them, and he did not actually read the terms before placing his order on the website.

The Superior Court denied Provide Commerce's petition...