Browse Wrap - Case Law

Case Law

In Specht v. Netscape, the Second Circuit Court of Appeals looked at the enforceability of a browse-wrap contract entered into on the Netscape website. Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". Only if a user scrolled down the page to the next screen did he come upon an invitation to review the full terms of the program's license agreement, available by hyperlink. The plaintiffs, who had not seen the agreement, downloaded the software and then were later sued for violations of federal privacy and computer fraud statutes arising from the use of the software. The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Because the plaintiffs were not put on notice of these terms they were not bound by them.

In Ticketmaster v. Tickets.com, the court looked at a breach of contract claim where the terms and conditions were situated at the bottom of the home page in "small print." The court ruled for the defendant in this case but did allow Ticketmaster to replead if there were facts showing that the defendant had knowledge of the terms and implicitly agreed to them.

In 2005, the Illinois Appellate Court ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell products were repeatedly shown the words "All sales are subject to Dell's Term and Conditions of Sale", including a conspicuous hyperlink, over a series of pages. The court found that this repeated exposure and visual effect would put a reasonable person on notice of the "terms and conditions".