Web Design Accessibility Can Aid Enforcement Of Terms

Published date21 July 2022
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Discrimination, Disability & Sexual Harassment, IT and Internet, Privacy Protection, Trials & Appeals & Compensation
Law FirmArnold & Porter
AuthorJoshua Blank, Benjamin Danieli and Thomas A. Magnani

Enforceability of terms and conditions, privacy policies and other online agreements available on web, app and media assets is an increasingly hot legal topic, and one that continues to spur litigation despite, or perhaps due to, the fact that direction from courts and the legislature is not specific or actionable.

This, combined with the fact that no agency or other body has promulgated a set of concrete principles directly addressing enforceability of terms and conditions, leaves businesses without certainty as to whether their terms and conditions are enforceable, until litigated.

As a result, it's time to look elsewhere for practical and tangible suggestions around how clients can build content with enforceable terms.

In short, without website standards, uniform criteria or federal legislation regulating the enforceability of terms and conditions, and with little truly actionable legal direction from courts or other administrative bodies, how can a business make sure its online terms are enforceable?

One option: Try making the website accessible.

Gaps in Current Legal Framework

The jurisprudence around enforcement of terms and conditions begins with a focus on the various types of online agreements.

It is now widely accepted that clickwrap agreements are generally more enforceable than browse-wrap agreements, as the U.S. Court of Appeals for the Second Circuit stated in 2017 in Meyer v. Uber Technologies Inc.1

Yet not all online terms and conditions fit squarely into those two categories, as in, for example the 2015 Berkson v. Gogo LLC decision in the U.S. District Court for the Eastern District of New York.2

Indeed, most courts analyze online contracts under a spectrum framework, with various types of agreements falling between the clickwrap and browse-wrap extremes, as explained in the Supreme Court of Maine's 2022 Sarchi v. Uber Technologies Inc. decision.3

This led the courts to note, as did the Second Circuit in Meyer, that, "[t]he reasonableness of notice [and] enforceability of a web-based agreement is a fact-intensive inquiry."4

Courts across the country have developed an enforceability test to evaluate terms and conditions. That test centers on two factors: (1) reasonably conspicuous notice; and (2) a user's manifestation of assent.

Expanding on those points, courts, like California's Fourth District Court of Appeal in 2021's Sellers v. JustAnswer LLC decision, have highlighted the following as key elements:

  • The size of the text;
  • The color of the text as compared to the background it appears against;
  • The location of the text and, specifically, its proximity to any box or button the user must click to continue use of the website; d) the obviousness of any associated hyperlink; and
  • Whether other elements on the screen clutter or otherwise obscure the textual notice.5

This enforceability test has led to a multitude of decisions across the country in which courts examine a broad range of font, color, contrast, notice and design elements to determine whether T&Cs are enforceable, as in the 2021 Peiran Zheng v. Live Auctioneers LLC decision in the U.S. District Court for the Southern District of New York;6 or unenforceable, as in the recent 2022 Berman v. Freedom Financial Network LLC decision in the U.S Court of Appeals for the Ninth Circuit.7

While those opinions are generally instructive, courts and the legislature have not yet answered logical follow-on questions regarding implementation of the enforceability test.8 Obvious questions remain unanswered: How large should the font be? What contrast ratios ' the text color vs. the background color ' are readable? What makes text, boxes and...

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