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September 3rd, 2014
eCommerce Best Practice: Require Customers to Click “I Agree”
The Ninth Circuit recently affirmed what many industry players already recognized: when conducting eCommerce with consumers, the safest practice for businesses looking to enforce their website's terms is to include obvious indicia of consumer consent, possibly through use of a "clickwrap" agreement (where website users are required to affirmatively click on an "I agree" box).
In Nguyen v. Barnes & Noble Inc., 2014 U.S. App. LEXIS 15868 (9th Cir. August 18, 2014), a customer sued Barnes & Noble in federal court over a cancelled purchase. Barnes & Noble cited the arbitration provision in its website terms of use and asked the court to force the parties to resolve the matter out of court. (Many corporations view arbitration as a less-expensive means of dispute resolution.) However, the terms on the Barnes & Noble website were presented as a "browsewrap" agreement, meaning the terms of use were posted on the website via a hyperlink at the bottom of the screen; the company did not require users to affirmatively click that they agreed to the terms before making a purchase. Nguyen argued that Barnes & Noble had not provided him and similarly situated consumers with sufficient notice of the terms, and that customers had therefore not agreed to arbitrate claims.
The trial court agreed with the customer, and Barnes & Noble appealed. The U.S. Court of Appeals for the Ninth Circuit affirmed, stating:
where a Web site makes its terms of use available via a conspicuous hyperlink on every page of the Web site but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on - without more - is insufficient to give rise to constructive notice.
This is a significant legal development for any company conducting eCommerce with consumers. As a best practice, a business operating a consumer-directed website or application should consider using a clickwrap agreement - not a browsewrap agreement - for any website terms it plans to enforce; the mere posting of terms online is unlikely to suffice.
For more information on the Barnes & Noble decision, or any other eCommerce or technology law issues, please contact Greg Boyd at (212) 826 5581 or gboyd@fkks.com, Hannah Taylor at (212) 705 4849 or htaylor@fkks.com, or any other member of the Frankfurt Kurnit Technology, Digital Media and Privacy Group.
Other Technology Law Alerts
‘Spectacularly Transformative’ — and Still Liable: The AI Copyright Showdown Begins
In the first federal court ruling on whether training generative AI models with copyrighted materials constitutes fair use, U.S. District Judge William Alsup issued a mixed but monumental decision on June 24, 2025, in Bartz et al. v. Anthropic PBC (N.D. Cal., No. 24-05417 WHA). The judge hailed Anthropic’s Claude model as “among the most transformative many of us will see in our lifetimes,” noting its ability to mimic human reasoning and writing by processing millions of digitized texts. He found that the use of copyrighted books to train such models was “spectacularly transformative,” stating that the LLMs “trained upon works not to race ahead and replicate or supplant them — but to turn a hard corner and create something different.” Read more.
June 26 2025
Risky Business Just Got Riskier - DOJ Changes Stance on Internet Gambling
Last week the U.S. Department of Justice (DOJ) made waves in the online gambling industry with an Opinion interpreting the Wire Act (18 U.S.C. § 1084). In the Opinion, DOJ's Office of Legal Counsel concluded that most sections of the Wire Act are not limited to sports-related wagers and instead prohibit the use of interstate wires for any bets or wagers. Read more.
January 23 2019
Video Games With Advanced Communications Services Must Now Be Accessible to Players With Disabilities
An important legal waiver recently expired and as a result, video game developers and publishers must now ensure that new and substantially upgraded games comply with the accessibility requirements of the 21st Century Communications and Video Accessibility Act (“CVAA”). Read more.
January 7 2019
