LuvLee is relying on their “browse-wrap” agreement, an agreement whereby a website owner seeks to bind website users to terms and conditions by merely posting the terms somewhere on the website and making the terms accessible through a hyperlink. The website user does not have to click anything in order to accept the terms, and could, in fact, be completely unaware of the terms while browsing the site. In contrast, a “clickwrap” agreement requires users to expressly manifest asset to the terms by, for example, clicking an ‘I accept’ button.
Case law has made it clear that browse-wrap agreements are valid only if the website provides notice of the terms of the contract. In January 2012, Zappos.com, a large online retailer of shoes and clothing learned they could not rely on a “browse-wrap” agreement to protect the company from a class action suit filed by users whose personal data was compromised during a security breach at Zappos. The company attempted to send the lawsuits to arbitration based on its user agreement, a browse-wrap agreement. The court held that agreement unenforceable, saying:
STP has recently published an update to Internet Law: The Complete Guide.