One of the many challenges facing companies that do business online is ensuring their website’s terms of service and privacy policies are enforceable to the greatest extent possible in case of a dispute with customers.
In a recent California case, Berman v. Freedom Financial Network LLC, the Ninth Circuit Court of Appeals revisited when use of a website can bind a customer to hyperlinked “terms and conditions” containing an arbitration provision that the customer never saw or read. The appeals court affirmed the district court, ruling that the plaintiffs did not enter into a binding agreement to arbitrate because they did not “unambiguously manifest their assent to the terms and conditions when navigating through the [defendants’] websites.”