According to the Ninth Circuit in Berman, absent actual notice, a website owner can show constructive notice by demonstrating that (1) the website provides “reasonably conspicuous notice” of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.
Some courts have also defined a third category of agreements, hybridwrap, falling between browsewrap and clickwrap agreements. Hybridwrap agreements incorporate elements of both browsewrap and clickwrap agreements, providing greater notice of the terms and the website owner’s intent to bind the user to such terms while stopping short of requiring affirmative assent.
Heather Gaker v. Citizens Disability, LLC—Massachusetts
In Gaker, Heather Gaker alleged that Citizens Disability (“Citizens”) violated the Telephone Consumer Protection Act (“TCPA”) by placing telemarketing calls to her cell phone without her prior consent despite registering her number on the Do Not Call Registry. Citizens, a Massachusetts for-profit corporation that assists persons with disabilities in claiming Social Security benefits, argued that Ms. Gaker provided consent to receive telemarketing calls when she provided her personal information through a sweepstakes website (“Sweepstakes Website”) that offered a chance to win $50,000. At the bottom of the Sweepstakes Website was a box to “CONFIRM YOUR ENTRY” in addition to the following terms (“Terms”):
By clicking confirm your entry I consent to be contacted by any of our Marketing Partners, which may include artificial or pre-recorded calls and or text messages, delivered via automated technology to the phone number(s) that I have provided above including wireless number(s) that I have provided including wireless number(s) if applicable regarding financial, home, travel, health, and insurance products and services. Reply ‘STOP’ to unsubscribe from SMS service. Reply ‘Help’ for help. Standard Message & data rates may apply. I understand these calls may be generated using an autodialer and may contain pre-recorded messages and that consenting is not required to participate in the offers promoted. I declare that I am a U.S. resident over the age of 18 and agree to this site’s terms.
The words “Marketing Partners” contained a hyperlink to a page containing a list of companies, which included Citizens. A marketing vendor provided Citizens the information submitted through the Sweepstakes Website, after which Citizens placed seven calls to Ms. Gaker’s phone regarding the company’s disability services.
The TCPA prohibits telephone solicitations to a number registered on the national Do Not Registry unless the solicitor has obtained “prior express invitation or permission,” which must be evidenced by a “signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.” Further, the TCPA defines “prior express written consent” as
an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
The agreement must contain a clear and conspicuous disclosure informing the person signing it that the person is authorizing the telemarketing calls and that signing the agreement is required as a condition of purchasing any property, goods, or services. According to guidance from the Federal Communications Commission, when a question arises about whether a consumer has given consent, the telemarketer bears the burden to demonstrate that “a clear and conspicuous disclosure was provided and unambiguous consent was obtained.”
Thus, the central question before the U.S. District Court for the District of Massachusetts was whether the Sweepstakes Website adequately disclosed the Terms such that Ms. Gaker gave “unambiguous consent” to be bound by the Terms. Relying on precedent on online terms and conditions, the court sided with Ms. Gaker and ordered Citizens to pay $500 per violation for a total of $3,500. The court concluded that Citizens had not met its burden to establish that “a clear and conspicuous disclosure was provided and unambiguous consent was obtained.” Salient factors in the court’s decision included the following:
- The Terms were presented in a font smaller than other language on the page.
- The Terms were also displayed in blue font against a blue background, with only slight variation in color between the two. No other language on the Sweepstakes Website was presented as inconspicuously, and all promotional language was presented in clearly contrasting colors.
- The Terms appeared below the “CONFIRM YOUR ENTRY” box such that a user could click the button without ever reaching the Terms at the bottom of the page.
- The Sweepstakes Website included images of gold coins and dollar signs in addition to other headlines and advertisements in large and legibly colored font, distracting visitors from the Terms at the bottom of the page.
Citizens argued that appearance of the language “By clicking confirm your entry I consent to be contacted by any of our Marketing Partners” on the Sweepstakes Website, without requiring the visitor to click a hyperlink, should have sufficed to constitute clear and conspicuous disclosure. The court determined that this was insufficient due to the “totality of the page,” given the factors above, indicating an intent to distract a reasonable user from the terms. For these reasons, the court also determined that the Terms did not meet the Ninth Circuit’s Berman test.
In addition, Ms. Gaker was not required to indicate that she had read the Terms before submitting her information (e.g., by checking a box). Therefore, the Terms did not meet the court’s definition of a clickwrap agreement, which would carry some presumption of validity. Instead, the court characterized the Terms as a browsewrap or hybridwrap agreement, which does not carry a presumption of validity.
Arisha Byars v. The Goodyear Tire and Rubber Co., et al.— California
At the heart of Byars were allegations that The Goodyear Tire and Rubber Co. (“Goodyear”) engaged in wiretapping activities in violation of the California Invasion of Privacy Act. Of relevance to this client alert, however, is the decision’s discussion of browsewrap agreements in evaluating whether Ms. Byars consented to Goodyear’s forum selection clause.
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