A federal district court in Illinois recently held in Anand v. Heath that a
digital marketing company could not force a user to arbitrate
because a "Continue" button on its website did not
provide clear notice that clicking the button constituted assent to
the hyperlinked terms and conditions that contained the arbitration
provision.
As we have
noted previously, website operators who wish to enforce their
online terms against users will have a higher likelihood of success
if they do two things. First, the website should display the terms
to users in a conspicuous fashion. Second, and applicable here, the
website should affirmatively and unambiguously require users to
assent to the terms. Anand demonstrates that online
agreements risk unenforceability when the terms are presented in a
manner that does not make clear to users that they are agreeing to
be bound.
