Offer and Acceptance . . . by Inquiry Notice. This is not a traditional understanding of contract law, but then again, internet sites do not always provide traditional contracts. Recently, a district court cited 9th Circuit precedent in deciding that because an online user had “at least inquiry notice of his need to comply with the Terms in using the website, and he continued to use the site knowing he was bound by the Terms, the user accepted the Terms by using the site.” Gutierrez v. FriendFinder Networks Inc., No. 18-CV-05918-BLF, 2019 WL 1974900, at *8 (N.D. Cal. May 3, 2019).
With ever-increasing internet usage rates, online contracts are becoming more and more commonplace; consequently, it is more important than ever for webpage providers and consumers alike to understand the basics (and the complexities) of online contract law. As the court explained in Gutierrez, contracts formed on the internet can usually be described as either clickwrap or browsewrap agreements:
“clickwrap” (or “click-through”) agreements, [are agreements] in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, [are agreements] where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen … Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly … a party instead gives his assent simply by using the website … 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.
Id. at *4 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1175-76, 1177 (9th Cir. 2014). The 9th Circuit, in Nguyen, noted that courts are generally reluctant to enforce browsewrap agreements against individual consumers, but courts are more inclined to do so when a website contains “an explicit textual notice” that continued use of the website will suffice as intent to be bound. Id at 1176. Thus the “Inquiry Notice” theory.
One could argue that the Inquiry Notice theory is merely a “well-advertised browsewrap” standard, and that Gutierrez v. FriendFinder Networks Inc. opens the door to online users being bound by a website’s Terms without seeing or acknowledging that they have read the Terms. Take, for example, the following hypothetical webpage: