Almost all social media sites contain “Terms of Service” (“TOS”). Are they enforceable against users? It depends on the presentation and the issue.
The fundamentals of contract law remain intact. “While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” (Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004)). Contracts cannot be mandated unilaterally. Contract law requires a “mutual manifestation of assent, whether by written or spoken word or by conduct . . .” (Nguyen v. Barnes & Nobles, Inc., No. 12-56628 (9th Cir. August 18, 2014)(“Nguyen”); Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir. 2002)(“Specht”)).
How does one manifest consent in the Internet age?
“Clickwrap” agreements―those requiring an affirmative response, such as clicking an “I agree” box―have been upheld because the user had reasonable notice and manifested assent. This is true even if the user later claimed not to have read the document. (See, e.g., Feldman v. Google, Inc., 513 F. Supp.2d 229 (E.D.Pa. 2007)). A clickwrap agreement is frequently presented through a pop-up box or a page that requires the user to scroll through to the agreement’s end before interacting further. Facebook’s “click accepted” TOS with a forum selection clause were upheld by the Southern District of New York in Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012). Clickwrap agreements might be ruled unenforceable on other grounds, of course. In Bragg v. Linden Research Inc. (filed May 2006), in which plaintiff disputed ownership of virtual land in a Second Life account, the court refused to enforce an arbitration clause. In the equivalent of an unconscionability finding, the court stated that Second Life is a business that operates across multiple states and therefore it may be sued outside of the state designated in its TOS (reported at http://arstechnica.com/tech-policy/2007/06/second-life-land-dispute-moves-offline-to-federal-courtroom/).
A “browsewrap” agreement, in contrast, does not require the user’s input. The owner inserts a hyperlink at the site’s top or bottom, and it might advise users within a webpage that the TOS may be so accessed. Typically, no record is created of whether the user clicked the hyperlink, found the TOS, and read them. Some sites require the user to click multiple layers to reach the TOS. Other sites are more proactive by alerting the user on the account setup page that, by opening the account, he/she is agreeing to the TOS.
Are these passive measures sufficient to establish a binding...
