Be Super Obvious: A How-To For Enforceable Online Agreements

On March 17, 2016, a California Court of Appeals, in Long v. Provide Commerce, Inc., refused to enforce a website's Terms of Use (Terms), holding that hyperlinks to Terms are not enough to put users on notice of the Terms and to effectuate the users' consent thereto. The next week, the Seventh Circuit Court of Appeals, in Sgouros v. TransUnion, refused to enforce the arbitration clause of a website's agreement because the "layout and language of the site" did not provide users with "reasonable notice that a click" would manifest assent to arbitrate. These cases serve as reminders of the weaknesses of online agreements and provide insight into what facts would give rise to making them enforceable.