Fourth Circuit Finds that Users Agreed to Arbitration by Registering for Video Site

California residents Rohan Dhruva and Joshua Stern created accounts with CuriosityStream.com in 2020 and 2021 and began paying for a subscription to watch videos on the website. When they learned that CuriosityStream was sharing information about their viewing habits with Meta, they sued in Maryland on behalf of a putative class, alleging violations of the federal Video Privacy Protection Act and California state law. CuriosityStream moved to compel arbitration, and the District Court denied that motion.

In Dhurva v. CuriosityStream, Inc., the Fourth Circuit reversed, 2-1, with Judge Wilkinson dissenting. CuriosityStream’s chief technology officer detailed the process through which the plaintiffs registered for the service. The plaintiffs responded that they had no specific recollection of what they did when they signed up. The court provides an image of CuriosityStream’s signup page (right). For the District Court, this screen provided inadequate evidence of consent to be bound because, although there is a hyperlink to terms of service, there is no clear notice that clicking “sign-up now” entails agreement to CuriosityStream’s Terms of Service (ToS). Those ToS provide for individual arbitration. It’s in ALLCAPS, so there.*

For the majority, the payment page put users on notice that “there was a contract on offer,” and thus a reasonably prudent web browser would know that by clicking the “sign-up” button, they were agreeing to CuriosityStream’s ToS. The problem is, by clicking the link on the payment page, plaintiffs signaled only that they had read the ToS, not that they had agreed to them. The majority finds no problem there, as the separate “terms of use” page, which plaintiffs concede that they had acknowledged that they had read, provides that reading the terms is treated as agreeing to them. 

Plaintiffs point out that, under the majority’s logic, merely reading and clicking would constitute agreement, even if one never registered for the site. The majority seems unpersuaded, but it does not have to decide that issue, as the plaintiffs here did register and use the site. Having so done, they are bound by CuriosityStream’s provision for individual arbitration.

Judge Wilkinson (left — I’ve been a fan since 2008) concurs in the District Court’s assessment of the situation. Plaintiffs clicked a box acknowledging that they had read the ToS. They clicked no box saying that they agreed to them. So there is no contract. Judge Wilkinson does not think that a reasonably prudent web browser is on notice that they are agreeing to a contract when they acknowledge having read some document. That document may be any number of things. More generally, Judge Wilkinson sees the majority as replacing a “clear and conspicuous” standard with “a murky totality of the circumstances test.” The new test invites more litigation as companies test the waters to see what they can get away with. Worse, the new test puts the burden of avoiding confusion on consumers when vendors are obviously better positioned to avoid it. 

Arbitration has its advantages. However, the Supreme Court has repeatedly noticed that arbitration is a matter of consent, not ambush. Under the majority’s test, Judge Wilkinson says, “arbitration becomes less a choice and more a trap.” Doing it right is so easy. Judge Wilkinson offers up some language free of charge: “By subscribing to Curiosity Stream, you agree to our Terms of Use.” Judge Wilkinson asks, “Is that so very hard?”

*It’s worth noting every time this issue comes up that empirical scholarship shows that placing verbiage in ALLCAPS does not enhance the likelihood that consumers will read and understand that text. Bold helps; ALLCAPS does not.