Facts of Long v. Provide Commerce, Inc.
Provide Commerce, Inc. (the defendant) operates ProFlowers.com, an online retailer specializing in floral arrangements. Brett Long (the plaintiff) placed an order for a floral arrangement on ProFlowers.com, which was advertised as a fully assembled product. However, what Long received was a “Do-It-Yourself” (DIY) kit consisting of unassembled flowers, vase, and other components, which required the recipient to arrange the bouquet themselves. Feeling misled by the discrepancy between the advertised product and what he received, Long filed a lawsuit against Provide Commerce for consumer fraud, alleging violations of the California Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL).
Provide Commerce sought to compel arbitration based on a provision in its “Terms of Use,” which included an arbitration clause and a forum selection clause. These terms were presented as part of a “browsewrap” agreement, accessible via a hyperlink at the bottom of the ProFlowers.com website. Long contended that he never had actual or constructive knowledge of the “Terms of Use” and did not explicitly assent to them. The hyperlink to the terms was inconspicuous, and Long claimed he did not see or interact with it during the purchase process.
Procedural History
- Provide Commerce filed a motion to compel arbitration, relying on the arbitration provision in the “Terms of Use.”
- The trial court denied the motion, concluding that Long had not assented to the “Terms of Use.”
- Provide Commerce appealed the trial court’s decision to the California Court of Appeal.
Issue
The issues raised in Long v. Provide Commerce, Inc. were:
Did Long have actual or constructive knowledge of and assent to the “Terms of Use” on ProFlowers.com, such that he was bound by the arbitration provision contained within the browsewrap agreement?
Long v. Provide Commerce, Inc. Judgment
The California Court of Appeal in Long v Provide Commerce, Inc. affirmed the trial court’s decision, holding that Long did not have actual or constructive notice of the “Terms of Use” and therefore did not unambiguously assent to the arbitration provision or the forum selection clause. Consequently, Long was not bound by the browsewrap agreement.
Reasoning
The court’s analysis in Long versus Provide Commerce, Inc. focused on the enforceability of browsewrap agreements, which do not require explicit action (such as clicking a checkbox) to signify acceptance of terms. Instead, such agreements rely on users’ implied consent by using the website. The court identified the following key points in its reasoning:
1. Notice and Assent in Browsewrap Agreements
- For a browsewrap agreement to be enforceable, the user must have actual or constructive knowledge of its terms and unambiguously assent to them.
- Actual knowledge occurs when a user explicitly sees or interacts with the terms. Constructive knowledge can be established when the terms are presented in a way that a reasonably prudent internet user would notice and understand.
2. Presentation of the Terms of Use on ProFlowers.com
- The “Terms of Use” hyperlink was located at the bottom of the ProFlowers.com website among several other similar links, such as “Privacy Policy” and “Customer Service.”
- The hyperlink was not prominently displayed or accompanied by explicit language directing users to review the terms before proceeding with a purchase.
- The court noted that the “Terms of Use” did not appear in the checkout process, where users were required to complete several actions to finalize their purchase. This omission further weakened the argument that Long had constructive notice.
3. Precedents Cited
The court relied on several key cases to support its decision:
- Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002): The court held that merely making terms available without explicit action or clear notice does not constitute assent.
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014): This case emphasized that hyperlinks to terms must be conspicuous and accompanied by clear instructions to create constructive notice.
- Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362 (E.D.N.Y. 2009): The court found a browsewrap agreement unenforceable where terms were not adequately communicated to the user.
The court highlighted similarities between these precedents and the present case, concluding that the design of ProFlowers.com did not sufficiently notify users of the “Terms of Use.”
4. Reasonably Prudent Internet User Standard
The court emphasized the need to evaluate whether the “Terms of Use” were presented in a manner that a reasonably prudent internet user would notice. In this case:
- The hyperlink was neither prominently displayed nor accompanied by language encouraging users to review the terms.
- The placement of the hyperlink at the bottom of the page, without requiring user interaction, made it unlikely that users would be aware of the terms.
5. Consumer Protection Considerations
The court’s decision also reflected broader consumer protection principles. It underscored the importance of businesses clearly communicating terms and obtaining unambiguous consent, particularly when enforcing arbitration provisions that limit consumers’ rights to pursue claims in court.
Key Points from the Court’s Decision
- A browsewrap agreement requires clear and conspicuous presentation of terms to establish enforceability.
- Simply providing a hyperlink to terms at the bottom of a webpage is insufficient to create constructive notice.
- Businesses bear the burden of ensuring users are adequately informed of and assent to terms, especially when those terms include arbitration or forum selection clauses.
Disposition
The California Court of Appeal in Long vs Provide Commerce, Inc. affirmed the trial court’s denial of Provide Commerce’s motion to compel arbitration. Long was not bound by the arbitration provision in the “Terms of Use.”
Conclusion
The decision in Long v Provide Commerce, Inc. underscores the importance of transparency and user consent in online transactions. The case serves as a cautionary tale for businesses relying on browsewrap agreements and affirms courts’ commitment to protecting consumers from hidden or inconspicuous terms. By requiring clear and conspicuous notice of terms, the ruling helps ensure fairness in e-commerce and reinforces the principle that consent cannot be inferred from mere website use.