Browsewrap Arbitration Agreements for Reducing Risk / Downside

The legal strategy behind implementing a browsewrap arbitration agreement on your website is it potentially gives you control over legal actions arising from someone’s interaction on your website.

In this post, I’ll discuss a browsewrap agreement as it pertains to ADA Website Compliance and lowering the downside risk of potential legal action against you but browsewrap agreements can be effective against other measures as well.

Renowned FHA and ADA defense attorney Richard Hunt posted about browsewrap twice on his blog, AccessDefense.com.  The two posts are titled: Browsewrap could tame the ADA website litigation monster and Arbitration could tame the ADA website litigation monster update.

I’m going to borrow (steal) some of Richard’s ideas / information and distill them below while adding some of my own thoughts and research.

What is Browsewrap?

A Browsewrap agreement is usually a banner in the header or footer of a website that states that use of the website means acceptance of the agreement contained in the browsewrap notice.

There’s typically a link to a full set of terms and conditions found in the notice.

We typically see these notifying website users of a privacy policy.

The Federal Arbitration Act

The Federal Arbitration Act, 9 U.S.C Section 1, “governs the enforcement, validity, and intepretation of arbitration clauses in commercial contracts in both state and federal courts.”

The Act favors arbitration and the fundamental principle that arbitration is a matter of contract.

This means that courts must consider arbitration agreements just like they would other contracts and enforce them which compels anyone who consents to an arbitration agreement to be bound by an arbitration panel to resolve most disputes.

Generally, courts are apt to rule in favor that an arbitration agreement exists.  The exception will be is if the party opposing arbitration demonstrates a genuine issue of material fact concerning the existance of an agreement to arbitrate.

What Does a Browsewrap Arbitration Agreement Accomplish?

It can help a defendant to avoid the high cost of ADA Title III litigation by resolving disputes in arbitration which effectively lowers a website owner’s downside and forces plaintiffs to settle for much less.

There is precedent in federal courts which supports this notion and it stands to reason that website accessibility cases would be no different.

What Must an Arbitration Agreement Have to be Enforceable?

  1. Any browsewrap notice must be clear and conspicuous and fully accessible to all website users (including those with disabilities).  If an agreement isn’t conspicuous, then a plaintiff can argue that they have not been notified to its existence and, in effect, there is no notice.  In this instance, we’re thinking primarily of screen reader users which means your notice must be read by a screen reader.
  2. The agreement cannot be illusory.  If the agreement can be unilaterally changed at any time, there really is no agreement.  Basically, there must be a valid contract in place.
  3. Highly recommended: Use plain language that clearly states any disputes shall be resolved by an arbitration panel.

Clickwrap vs. Browsewrap

Web-based contracts are usually either clickwrap or browsewrap agreements.

Clickwrap agreements require users to click an ‘I agree’ box after being presented with a list of terms and conditions of use.

Clickwrap agreements are usually upheld by courts because they present the consumer with a realistic opportunity to review the terms of the contract and they require a physical manifestation of assent.

If you wanted to be extremely prudent, you could include both a browsewrap and a clickwrap agreement on your website although I posit that an introductory clickwrap agreement would make a browsewrap notice overkill (they’ve already physically assented).

The problem for some websites is the marketing aspect of the clickwrap agreement – you put a wall between the user and your website and maybe they decide to back out.

Additionally, there’s good reason to believe that a well crafted and constructed (accessible) browsewrap agreement would suffice to bind users into arbitration.

With a clickwrap agreement, you’d want to make sure that to use a modal window and make sure it was fully accessible to screen reader users.

Caveats

Some state law prevents the waiver of rights by its citizens.  To illustrate, a resident of California may not waive their right to bring a discrimination claim under the Unruh Act even if you had a valid browsewrap notice on your website.

I’m not saying this is definitively a fact.  I’m just providing an illustration that an arbitration clause is not a cure-all to website accessibility litigation but rather a downside and risk reduction measure.

Products and Services

If you need help writing a custom arbitration agreement or creating an accessible, WCAG 2.0 AA and WCAG 2.1 AA conformant browsewrap notice or clickwrap agreement, you can contact me at kris@accessible.org.

I can create this notice and customize the look and design to your specifications.

I’m currently working on templates for arbitration agreements.

Important Takeaway

Whether you use a browsewrap agreement, clickwrap agreement, or hybrid version thereof, the most important checkbox to take care of is that you make the user aware that the agreement exists.

You cannot tuck it away and hide it on the bottom of your website.  Rather, you must ensure that all website visitors are aware of what they are agreeing to.

And, of course, as it pertains to reducing risk of website accessibility lawsuits, you must make your notice and agreements fully accessible, particularly to screen reader users and those using mobile devices.