Browsewrap Arbitration Provision Found Unenforceable

A California federal court recently held in Rushing v. Viacom, Inc. that an arbitration provision in Viacom’s End User License Agreement was unenforceable because users could access the gaming application without having to click on a link to the EULA.

The court rejected Viacom’s argument that the user had actual or constructive notice of the arbitration provision.

Browsewrap agreements are generally disfavored because reasonable users must be shown to have been on inquiry notice of the terms. Courts have consistently found that users should be required to click on boxes or hyperlinks.

The Rushing court stated, “[a] user cannot accept an offer through silence and inaction where she could not reasonably have known that an offer was ever made to her.”

Website operators beware: Alternative dispute resolution provision in website agreements that are merely made available via a hyperlink may be found to be unenforceable.

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