Conclusione del patto arbitrale a modifica del rapporto in essere: tra clickwrap e browsewrap agreement

Il distretto nord della california, 8 settembre 2022, Case 4:22-cv-00422-PJH  , Alkutkar c. Bumble, affronta una frequente , ma non per questo poco interessante, fattispecie.

Azionata dall’utente una domanda di inadempiumento verso la piattaforma Bumble (sito di conoscenze e incontri) si vede eccepire la clausola di arbitrato: la quale sarebbe stata approvata in corso di rapporto a seguito di 1) notifica via email e soprattutto 2) di finestra di pop up . -c.d. blocker card- che onerava l’utente di accettar per  proseguire . Onere bloccante e finestra che  come sempre conteneva un link al nuovo testo del contratto aggiornato, ma che già essa riassumeva la più importante modifica (l’arbitrato appunto).

V. lo screenshot del pop up in sentenza (ma tratto dal blog del prof. Eric Goldman):

Ebbene, per la corte la email (simile al browsewrap) non dà prova di accettazione (p. 11) , ma il pop up con i I AGREE (simile al clickwrap) si.

I dati di Bumble infatti dicono che dopo questo pop up l’utente continuò ad usare i suoi servizi , per cui è presumibile che l’avesse vista e accettata (l’utente lo negava).

Ciò per tre motivi:

1) l’unicità delle credenziali,

2) gli accessi successivi rpesuppongono logicamente/informaticamente  accettazione: <<plaintiff’s access and use of the app is a demonstrable consequence of
his assent to the updated Terms. Bumble’s records show that all users were shown the
Blocker Card the first time they signed into the app after January 19, 2021. Wong Decl.
¶ 16 (Dkt. 36-1 at 6-7). The declarations of Bumble’s affiliated engineers make clear that
the Blocker Card functions in a straightforward fashion: it “prevents Bumble users from
accessing or using the Bumble app unless they click on the orange-colored button>>

3) << Lastly, the timeline of events indicates that plaintiff clicked his assent through the
Blocker Card. On January 18, 2021, the Terms governing use of the Bumble app were
updated to include an Arbitration Agreement. Chheena Decl. ¶ 7 (Dkt. 30-1 at 3). On the
same day, the Blocker Card was implemented into the app for existing users, requiring
assent to the updated Terms to access the app the first time a user signed in after
January 18. Chheena Decl. ¶ 11 (Dkt. 30-1 at 3-4); Wong Decl. ¶ 12 (Dkt. 36-1 at 4).
Plaintiff reports that the first time he signed into the app after January 18, 2021, was in
March 2021. Alkutkar Decl., May 14, 2021, ¶ 5 (Dkt. 32-2 at 2). This corresponds neatly
with Bumble’s records, which show that he accessed and used the app on March 4,
2021. Wong Decl. ¶ 18 (Dkt. 36-1 at 7). On that date, plaintiff added new photos to his
profile and swiped on other user profiles, activities that might correspond with a user’s
first time accessing the app following a hiatus. Wong Decl. ¶ 18 (Dkt. 36-1 at 7). Plaintiff
additionally accessed and used the app on March 5, 7, and 11, activities only achievable
following clicking assent on the Blocker Card. Id., ¶ 18. Indeed, plaintiff would not have
been able to purchase the premium features that are the subject of this suit in March,
August, and September 2021 unless he clicked to accept the updated Terms and
Arbitration Agreement. Id., at ¶ 18

In altre più brevi parole <<Bumble has shown that plaintiff used unique credentials to access the app on March 4, 2021, that his access and use of the app on that date was a demonstrable  a consequence of his assent to the updated Terms because he only could have done so by clicking through the Blocker Card, and that the timeline of events indicates that plaintiff clicked his assent to the updated Terms. These facts are similar to those found sufficient to authenticate an electronic signature in Ngo, 2018 WL 6618316, at *6, and they are sufficient to authenticate an electronic signature here. Bumble thus establishes by a preponderance of evidence that clicking through the Blocker Card was “the act of” plaintiff necessary to show that he electronically signed and agreed to the updated Terms, including the Arbitration Agreement. >>

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

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: or