In a recent decision, a California federal court held that an arbitration provision contained in Viacom, Inc.’s browsewrap agreement was unenforceable and denied Viacom’s request to stay the case pending arbitration.[1] The court’s decision in Rushing v. Viacom, Inc. is consistent with “courts’ traditional reluctance to enforce browsewrap agreements against individual consumers.”[2]
Clickwrap versus browsewrap agreements
As companies continue to increase their online presence through websites and mobile applications, they often rely on “clickwrap” or “browsewrap” agreements to bind consumers to terms and conditions that govern consumers’ purchase and use of products from a website or mobile application. A clickwrap agreement requires a consumer to manifest assent by: (1) clicking an icon to that effect (e.g., a link or icon titled “I agree”) after being presented with a list of terms and conditions of use, or (2) “affirmatively acknowledg[ing] the agreement before proceeding with use of the website.”[3] In contrast, a browsewrap agreement is a set of terms, which is accessible via a hyperlink located on the pages of a website. Unlike a clickwrap agreement, a browsewrap agreement does not require a consumer to review the terms of the agreement or manifest assent to those terms and conditions through any affirmative conduct. Instead, a consumer assents to a browsewrap agreement simply by using the website.
Reluctance to enforce browsewrap agreements
Since browsewrap agreements do not require affirmative action by the user to agree to the terms and...
