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In Nguyen v. Barnes & Noble Inc., the Ninth Circuit held that a conspicuous, non-mandatory hyperlink at the bottom of every page of a website is insufficient to provide the user with actual notice of a website's arbitration agreement. Instead, the user must demonstrate some affirmative assent in order to be bound to the linked agreement. The Ninth Circuit reasoned that "[b]ecause no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of the website's terms and conditions." In the present case, there was no evidence that Nguyen had actual notice of Barnes & Noble's Terms of Use, nor was he required to affirmatively acknowledge the Terms of Use before completing his online purchase; thus, Nguyen did not enter into Barnes & Noble's agreement to arbitrate. In its discussion, the Ninth Circuit deals extensively with two ways that internet contracts are formed: "clickwrap agreements" and "browsewrap agreements." Although Barnes & Noble's Terms of Use fall into the latter category and did not bind Nguyen to an agreement to arbitrate, the Ninth Circuit went further by vaguely recognizing certain circumstances where a browsewrap agreement is enforceable. Ultimately, even though the Ninth Circuit likely reached the correct conclusion, it failed to seize an opportunity to clarify the enforceability of contracts formed through internet commerce.
Recommended Citation
Ben Colburn, That's a Wrap: The Ninth Circuit's Failure to Clarify the Enforceability of Browsewrap and Clickwrap Agreements in Internet Commerce, 7 Y.B. Arb. & Mediation 192 (2015).