Most online terms-of-use agreements claim to give their drafters broad discretion to modify the terms at the host’s discretion. Some terms-of-use agreements purport to allow host websites to modify the terms by sending an email (inevitably, to your spam folder) to notify you of the changes. Others require users to constantly refresh their browsers to know when updates occur.
Before 2022, courts usually enforced the former strategy while requiring some evidence of actual or constructive notice to enforce the latter. It was always a little dicey trying to figure out when courts would enforce these updates. However, usually, if plaintiffs could provide some evidence of notice that was consistent with how the original contract said it would update the terms, courts would give them the benefit of the doubt, at least at the early stages of litigation.
But this year, courts have begun to require more rigorous evidence of notice and assent to enforce modifications to online agreements. This was the key takeaway in Sifuentes v. Dropbox, Inc., 2022 WL 2673080 (N.D. Cal. June 29, 2022), which held that email notification of an update to a terms of use agreement could not bind the plaintiff to arbitration if the defendant could not prove that the plaintiff had read the email notification. And this was also implicit in Alkutkar v. Bumble, Inc., 2022 WL 4112360 (N.D. Cal. Sept. 8, 2022), which was able to enforce its arbitration clause only because it was able to sell the court that it had effectively implemented a mandatory click-through process to notify users of its amendment.
The most recent court to scowl in the direction of a company that purported to unilaterally update its terms-of-use agreement with little or no notice to users was Int’l Markets Live, Inc. v. Thayer, 2022 WL 4290310 (D. Nev. Sept. 16), a case out of the District Court of Nevada.
The facts of the case are as follows:..
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