A quick refresher about arbitration clauses: No person or entity can be compelled to arbitrate disputes (rather than go to court) unless they have specifically agreed to arbitration. Since notice is often equated with agreement, a key question is often whether someone is “on notice” that they will be required to arbitrate disputes, i.e., was the arbitration clause sufficiently conspicuous so as to put one on notice of the arbitration requirement. In the on-line world, what is conspicuous? Recently, the First Circuit (the federal court one notch below the US Supreme Court – so good authority) decided that mere notice of “deemed acquiescence” with an optional link to the terms is not sufficient to bind consumers. Uber argued that it had set out the link to the arbitration terms in a gray rectangular box and used large bold font and contrasting color, making it difficult to miss and thus conspicuous. The Court disagreed, noting that there were many items on the screen which were also set out with large typeface and other noticeable attributes. Notably, they observed that “If everything on the screen is written with conspicuous features, then nothing is conspicuous.”

Takeaway:

If you want users of your website to be bound to particular terms and conditions of use, such as arbitration, it is not sufficient to merely include a hyperlink to those terms. Instead, design your website so that a user must open that hyperlink before proceeding to register or otherwise use your site.