L’accettazione delle Terms of Service di Dropbox tramite il c.d. browsewrap non è valido

Secondo il distretto nord della California Case 4:20-cv-07908-HSG con sentenza 29 giugno 2022, Sifuentes c. Dropbox, l’accettazione tramite decisione di continuare a navigare non è sufficiente per far ritenere <voluta> una clausola arbitrale contenuta nelle TOS (terms of service).

In particolare, il  privato ricosncoe di aver accettato le TOS iniziali del 2011, ma non -tra le molte modifiche successive- quella del 2014, che aveva inserito una clausola arbitrale:

<< To show that Plaintiff had inquiry notice, Defendant must show that he was provided
reasonably conspicuous notice of the contract terms and unambiguously manifested his assent.
See Berman, 30 F.4th at 856 . “[O]nline providers have complete control over the design of their
websites,” and therefore have the responsibility to put users on notice of the terms to which they
wish to bind consumers.
Id. at 857 (citations omitted).

Defendant acknowledges that between
2011 and 2019 it modified its terms of service no less than twelve times, and contends that it sent
an email to Plaintiff in 2014 explaining the addition of a mandatory arbitration clause. Reply at 9.
There is nothing in the record to suggest that Plaintiff could not use the service until he indicated
his assent, that he would have been advised of new terms and conditions while using Defendant’s
services, or that Defendant ever tracked whether Plaintiff had opened its email.

Even if the email
alone could be considered “reasonably conspicuous notice,” Plaintiff took no action to
unambiguously manifest his assent.
See Berman, 30 F.4th at 856 (requiring the consumer to
“take[] some action, such as clicking a button or checking a box” in order to form an enforceable
contract under inquiry notice theory).
Defendant essentially argues that it contracted for the right to change the terms at will
because the 2011 TOS contains a provision stating that Defendant “may revise these Terms from
time to time” and that continuing to use the service constitutes agreement to any revised terms.
See Reply at 6; Dkt. No. 40-1 Exhibit E. Defendant’s argument misses the point. Given the complete lack of evidence of notice within Defendant’s service itself, Plaintiff’s ongoing use of the service is irrelevant to determining whether he had actual or constructive notice of the post-
2011 terms of service.

Moreover, the 2011 TOS essentially disavows any obligation to alert
Plaintiff to changes: “If a revision, in our sole discretion, is material we will notify you (for
example via email to the email address associated with your account.”
See Dkt. No. 40-1 Exhibit E. But Ninth Circuit law is clear that it is a website owner’s duty to show clear notice and assent.
The Court finds that Defendant has not shown by a preponderance of the evidence that
Plaintiff had actual or inquiry notice of the updated terms of service. See Norcia, LLC, 845 F.3d
at 1283. Without actual or inquiry notice, there was no manifestation of mutual assent, and the
later terms of service do not impose an enforceable agreement to arbitrate>>.

Poco sopra sul cd browsewrap agreement:

<< Plaintiff denies that he agreed to the later terms of service that added mandatory arbitration provisions. Opp. at 1. Defendant, on the other hand, contends that Plaintiff assented to the subsequent versions by continuing to use Defendant’s service. Dkt. No. 47 at 7; see also Dkt. No.   40 at 9 n.2. Assent by continued use of a web service is a traditional feature of browsewrap agreements. Nguyen, 763 F.3d at 1176 (“The defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists.”) (citation omitted). “Courts are more reluctant to enforce browsewrap agreements because consumers are frequently left unaware that contractual terms were even offered, much less that continued use of the website will be deemed to manifest acceptance of those terms.” Berman v. Freedom Financial Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022). >>

Sulla conclusione del contratto via shrinkwraps o browsewraps v le riflessioni critiche di Lemley, Mark A., The Benefit of the Bargain (August 8, 2022). Stanford Law and Economics Olin Working Paper No. 575, Available at SSRN: https://ssrn.com/abstract=4184946 or http://dx.doi.org/10.2139/ssrn.4184946