Emailed Links to Forum Selection Clauses Constitute Sufficient Notice
Nancy Kim is, as you probably know, one of the nation’s, if not the world’s, leading experts on internet contracting. She is a contributor to this blog as well. Among other issues, Professor Kim rightfully questions whether consumers are put on sufficient notice of various contractual terms and conditions when they purchase goods or services via the Internet.
The Second Circuit has just held that emails sufficiently direct a purchaser’s attention to a service provider’s terms and conditions including a forum selection clause when a hyperlink is provided along with language “advising” the purchaser to click on the hyperlink. (The case is Starkey v. G Adventures, Inc., 796 F.3d 193 (Second Cir. 2015). Said the court, “This method serves the same function as the method of cross-referencing language in a printed copy promotional brochure and sufficed to direct [the purchaser’s] attention to the Booking Terms and Conditions. Both methods may be used to reasonably communicate a forum selection clause.”
The background is this: A customer purchased a ticket for a vacation tour of the Galápagos Islands operated by a tour operator. Shortly thereafter, the tour operator sent the customer three emails: a booking information email, a confirmation invoice, and a service voucher. The booking information email contained the statement, “TERMS AND CONDITIONS: … All Gap Adventures passengers must read, understand and agree to the following terms and conditions.” This statement was followed by a hyperlink with an underlined URL. The confirmation invoice and service voucher each also contained hyperlinks, which were preceded immediately by the following text: “Confirmation of your reservation means that you have already read, agreed to and understood the terms and conditions, however, you can access them through the below link if you need to refer to them for any reason.” The hyperlinks in all three emails linked to a document entitled “…. Booking Terms and Conditions.” The second paragraph of that document stated that “[b]y booking a trip, you agree to be bound by these Terms and Conditions…. These Terms and Conditions affect your rights and designate the … forum for the resolution of any and all disputes.” The customer did not dispute that she received the relevant emails. Instead, she alleged, as often happens, that she never read the Booking Terms and Conditions because she never clicked on the hyperlinks.
The customer alleged that she was sexually assaulted on the tour by one of the tour operator’s employees. Instead of being able to pursue her negligence claim in a New York court, she must now pursue her claim in Ontario, Canada. The court also held that it was not unreasonable and unjust to enforce the forum selection clause, stating that such clauses will only be set aside if (1) its incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forum in which suit is brought; or (4) trial in the selected forum will be so difficult and inconvenient that the plaintiff effectively will be deprived of his day in court. The plaintiff failed to meet any of those requirements.
This case shows how some courts still ignore the fact that, as Professor Kim has pointed out and as the case obviously shows, even though the attention of purchasers (online or otherwise) is directed towards certain crucial contractual clauses, they in fact do not read these. Such is reality in a society such as ours with numerous and often lengthy and complicated legal notices and disclaimers. Are purchasers then truly given sufficient notice in such modern cases? But from a contrary viewpoint, what else can sellers and service providers possibly do to make purchasers aware of key terms? For more on this, read Professor Kim’s scholarship or book.