Assent Uber Alles: Enforcing Browsewrap Agreements in Smartphone Applications
| Publication year | 2022 |
Assent Uber Alles: Enforcing Browsewrap Agreements in Smartphone Applications
Emma F. Duke
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When a smartphone user browses a website or downloads a new application (app), the user will most likely be met by a pop-up or hyperlink providing the infamous "terms and conditions."2 How many users click and explore the terms and conditions posed by the website or app before clicking "I Agree" and continuing on?3 Unbeknownst to most users, the terms contained within that seemingly insignificant link can have long-standing consequences if litigation were to arise.
The terms and conditions hyperlink a smartphone user often sees when signing on to an app is called, in the world on internet contracts, a browsewrap agreement (browsewrap(s)).4 To determine the enforceability of browsewraps, courts consider whether the terms and
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conditions are reasonably conspicuous and whether the user, while on notice of the terms, continues using the app.5 These two elements—conspicuous terms and continued use—are critical to support a finding that a browsewrap agreement and its terms are enforceable against a user.
The enforceability of a browsewrap imbedded in a smartphone app came before the Georgia Court of Appeals in May 2021 as an issue of first impression in Thornton v. Uber Technologies, Inc.6 Relying on the reasoning of the United States Court of Appeals for the First and Second Circuits regarding the enforceability of browsewrap agreements, the Georgia Court of Appeals reversed the trial court's order compelling arbitration and held that the lower court erred by finding Thornton assented to the hyperlinked terms as a matter of law.7
In February 2018, Ryan Thornton was murdered by a driver working for Uber Technologies, Inc.,8 (Uber).9 The decedent's mother later filed a lawsuit against Uber, claiming wrongful death and negligence. This case came before the Georgia Court of Appeals on an interlocutory appeal by the Plaintiff after the trial court granted a motion to compel arbitration in favor of Uber. On appeal, the Plaintiff argued Thornton never assented to the terms and conditions presented by Uber, and thus he did not agree to the arbitration clause Uber sought to enforce.10
To use the services offered by Uber, a user must first create and register an account through Uber's smartphone app and enter their payment information.11 Thornton created his account with Uber using the Uber app on his Android smartphone on May 15, 2016. When creating an account in the Uber app, a user is first brought to a screen to input contact information and create a password for the account.
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Then, the user is guided to the payment screen to complete his registration.12
At the bottom of this payment screen on the version of the Uber app Thornton used was the following language in dark gray, uppercase text: "BY CREATING AN UBER ACCOUNT, YOU AGREE TO OUR TERMS & CONDITIONS AND PRIVACY POLICY."13 While in a small font, the dark gray text stood out on a bright white background and the phrase "TERMS & CONDITIONS AND PRIVACY POLICY" were in blue and underlined, indicating a hyperlink. If this phrase was clicked, the hyperlink would direct the user to another webpage presenting Uber's full terms and conditions for use of its services. These terms and conditions contained the arbitration agreement at issue in the present case.14
On the payment screen in the Uber app during the registration process, the user may enter his credit card information or click a button to link to a PayPal account.15 If a user on an Android device clicked on the information field to enter his credit card information, an on-screen keyboard would rise from the bottom of the screen to allow the user to input the information. During registration on his Android, Thornton elected to enter his credit card information for his payment method. When this on-screen keyboard rises, the keys cover the bottom portion of the screen—including the hyperlinked terms and conditions.16
After registering his account, Thornton used Uber's services beginning in July 2016.17 Uber in an affidavit asserted that in November 2016, Thornton was sent an email from Uber providing an updated version of the terms and conditions. This new version contained updates to portions of the arbitration agreement. After November 2016, Thornton continued using Uber's services.18
After Thornton was murdered by his Uber driver in 2018, Thornton's mother filed suit in Dekalb County State Court.19 Uber filed a motion to dismiss and a motion to compel arbitration, seeking the enforcement of the arbitration clause contained in the terms and conditions presented in the app during Thornton's registration and in the November 2016 email. The trial court granted Uber's motion and ordered the parties to
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arbitrate upon a finding that Thornton assented to Uber's terms and conditions.20
On interlocutory appeal, the question of assent to the terms of a contract on a smartphone app presented an issue of first impression for the Georgia Court of Appeals.21 The court ultimately agreed with the Plaintiff, holding that the trial court erred as a matter of law in its finding that Thornton assented to Uber's terms and conditions.22 However, the court declined to hold that the terms and conditions were so inconspicuous that, as a matter of law, Thornton could not have assented to the terms.23 Rather, it determined that a question of fact remained as to whether the pop-up, on-screen keyboard concealed the terms and conditions such that Thornton did not have an opportunity to see or access the terms. Thus, Thornton could not have assented to the terms.24
A. Internet Contracts
A contract can be established over the Internet through a variety of methods, and each methodology involves a different manifestation of assent. Two of the most common methods are "clickwrap" and "browsewrap" agreements.25 Clickwraps entail a presentation of the terms and conditions to the user and a button containing a phrase such as "I Agree" or "I Accept."26 Similarly, there are "scrollwraps," in which the user must physically scroll through the terms in their entirety and then click an "I agree" button before moving forward.27 For clickwraps and scrollwraps, when the user clicks the "I Agree" button, the user
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expressly manifests his assent to the terms and conditions and a contract is formed.28
Then there are browsewraps. To establish a browsewrap agreement, the terms and conditions governing use of the site are displayed on the webpage, typically using a hyperlink that connects the user to another page containing the agreement in its entirety.29 For browsewrap agreements, the user is said to exhibit assent through continued use of the website or application, as long as the user has actual or constructive knowledge of the terms and conditions provided by and through the hyperlink.30 This continued use amounts to a manifestation of assent once the user is on notice of the terms; the user does not have to otherwise provide an express, affirmative act to manifest assent.31 Because of the difference in manifestation of assent in these different types of internet contracts, courts consider issues regarding assent to browsewrap agreements in a unique manner.
B. Evaluating the Validity of Internet Contracts
Internet contracts are analyzed using general principles of contract law, just like written contracts.32 Central to contract law in Georgia is the principle that mutual assent by the parties is required to create a binding, enforceable contract.33 To determine whether there was mutual assent by the contracting parties, courts apply the objective theory of intent, whereby "one party's intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party's manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent."34 Relevant to finding mutual assent is evidence of the circumstances surrounding the formation of the
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contract, including communications between the two parties.35 Lastly, like with traditional, written contracts, the "duty to read" principle applies to internet contracts.36 When a person who can read signs a contract without apprising himself of the contents, the failure to read generally does not excuse the party from the terms contained therein.37
These traditional principles govern the construction and enforceability of internet contracts as well. In evaluating whether an arbitration clause in an internet contract created though a browsewrap agreement is binding and enforceable, courts apply state contract law on traditional contract formation.38 However, the application of such principles to internet contracts has been an issue of first impression for many courts, prompting the development of a new framework specific to browsewrap agreements to determine enforceability.39
1. Enforcement of Browsewrap Agreements
Since the rise of internet contracts has occurred in only the past two decades, it is a relatively new area of case law, and courts are still developing the legal framework to test the enforceability of browsewrap agreements. While it remains an evolving area of law, over time courts have developed a two-step analysis to evaluate the enforceability of browsewraps.40 The first step assesses the communication of the terms to the user(s), which hinges on the conspicuousness of the terms.41 The second step evaluates the manifestation of assent, which involves the notice given to the user and his continued use of the website or app.42
In the development of this framework, courts have created the "reasonably prudent smartphone user" standard.43 To determine the enforceability of a clause in a...
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