Business Insider has an interesting take on contract law and how it applies to online web retailers. Specifically, they report on a recent court ruling involving Zappos, everyone’s favorite online shoe store. The headline reads: Almost Every Website On The Planet Could Be In Legal Jeopardy, Thanks To Zappos. Well, that’s certainly an outsized claim.
And now a court has tossed that arbitration clause, and Business Insider thinks that this will ruin every website on the planet. Well, okay. Have at it, guys. Here’s their legal analysis:
[Zappos] put a link to its terms of service on its website, but didn’t force customers to click through to it. What Zappos should have done: Force customers to click a button that says sure, yeah, whatever, they’ve read the terms and agree to them. Courts have found these “clickwrap” terms valid—even though in reality no one actually reads the stuff they’re agreeing to.
This is all technically right, but I fail to see how any of this is devastating to Every Website on the Planet. This is not news. I mean, the source Business Insider uses for this article is law professor Eric Goldman’s blog, and Professor Goldman explicitly says:
Zappos can hardly be surprised by this adverse judicial ruling. We have known for years that browsewraps are unenforceable (see some of the cases discussed here).
So yes, every website on the planet could be in legal jeopardy if they ignore nearly a decade of judicial rulings on this exact topic. This isn’t novel. No lawyer ought to be surprised about the court’s reasoning on the browsewrap/clickwrap distinction, because courts across the country have reasoned this exact way for a very long time.
One More Thing
Heck, here’s Professor Goldman writing about that exact issue five and a half years ago.
Indeed, the court independently concludes the arbitration clause is unconscionable. I expect courts will aggressively police these unilateral amendments using unconscionability and other limiting doctrines.
And here we sit, five years later, with courts doing exactly that.