The New York Times’s “The Upshot” Column on Wrap Contracts

Yesterday’s New York Times included a “The Upshot” column by Jeremy B. Merrill.  The print version was entitled Online, It’s Easy To Lose Your Right to Sue [by the way, why can’t the Times be consistent in its capitaliziation of “to”?], but the online version’s title tells us how easy, One-Third of Top Websites Restrict Customers’ Right to Sue.   The usual way they restrict the right is through arbitration provisions and class-action waivers.  They do so through various wrap mechanisms so that consumers are bound when they click “I agree” to terms they likely have not read and perhaps have not even glanced at.  

Some websites attempt to bind consumers by stating somewhere on their websites that consumers are bound to the website’s and the company’s terms simply by using the company’s website or its products (I’m looking at you, General Mills).  The only thing surprising about this, given the Supreme Court’s warm embrace of binding arbitration and class action waivers, is that two-thirds of websites still do not avail themselves of this mechanism for avoiding adverse publicity and legal accountability.

As I was reading this article, it started to sound very familiar — a lot like reading this blog.  And just as I was beginning to wonder why the Times was not ‘ quoting our own Nancy Kim, the article did just that:

“Courts have been very reluctant to say that browsewrap is not enforceable,” said Nancy S. Kim, a professor at the California Western School of Law and the author of a book about online contracts.

When courts decide whether a website’s terms can be enforced, they look for two things, Ms. Kim said: First, whether the user had notice of the site’s rules; and second, whether the user signaled his or her agreement to those rules. Courts have ruled that simply continuing to use the site signals agreement. When browsewrap agreements have been thrown out, as in the Zappos case, courts have said that the site’s link to the terms wasn’t displayed prominently enough to assume visitors had noticed it.

Congratulations to Nancy on such prominent notice of her scholarship!

And congratulations to the Times for paying attention!