It Helps If You Can See It

Here’s a recent holding from a federal court based in Washington state that reiterates a pretty basic concept. You can’t bind a customer to terms and conditions that they don’t see. An Internet service provider (“ISP”) tried to enforce an arbitration clause in a dispute with a customer. It asked the court to require the customer to arbitrate the matter, rather than proceed in federal court. Had the arbitration clause been enforceable, that would have been a reasonable request. But the court found that the clause was ineffective, at least for the time being. The court wanted to get more facts, and so required an evidentiary hearing. Courts will uphold arbitration clauses, even if it is contained in a set of terms and conditions that the customer accepts by clicking a button. But here, the problem was that the customer may never have actually seen the clause. Apparently, one of the plaintiffs claimed that the link to the contract terms was on the third page of an e-mail from the ISP. There was also testimony that the ISP’s home page doesn’t even mention the terms of service, but instead has a link at the bottom to “legal.” But according to the testimony, even clicking on that page yields yet another series of links, only one of which leads to the terms of service. As I said, this case doesn’t break any new legal ground. Click on terms can be effective. But you can’t play hide the ball. Or the link, as the case may be.