Hubbert v. Dell
An Illinois appeals court held
that plaintiffs who purchased computers over the defendant's website were bound
to an arbitration clause contained in the "Terms and Conditions of Sale,” even
though they were not required to click on an “I agree” button specific to those
terms of sale. To make
their purchases, each of the plaintiffs completed online forms on five of the
defendant's Web pages. On each of the five Web pages, the defendant's "Terms
and Conditions of Sale" were accessible by clicking on a blue hyperlink.
According to the court "the
blue hyperlinks on the defendant's Web pages, constituting the five-step process
for ordering the computers, should be treated the same as a multipage written
paper contract. The blue hyperlink simply takes a person to another page of the
contract, similar to turning the page of a written paper contract. Although
there is no conspicuousness requirement, the hyperlink's contrasting blue type
makes it conspicuous. Common sense dictates that because the plaintiffs were
purchasing computers online, they were not novices when using computers. A
person using a computer quickly learns that more information is available by
clicking on a blue hyperlink."
Dell, Decision of August
12, 2005, Appelate Court of Illinois, Fifth District
Court enforces Online Agreements, Including Terms Accessibale Via
JetBlue Airways Corp.
Plaintiffs brought this
action against JetBlueAirways Corporation for alleged violations of the
Electronic Communications Privacy Act of 1986 and violations of state and common
law. In their view defendants violated their privacy rights by unlawfully
transferring their personal information to Torch for use in a federally-funded
study on military base security. The defendant contended that the policy could
only be accessed and viewed by clicking on a seperate stand-alone link on the
bottom of a JetBlue Web page and was not a term of the contract of carriage. The
court rejected this argument, but did not discuss it in detail, because it found
that plaintiffs werde unable to plead or prove any actual contract damages.