Tempting Pitfalls For Companies Updating Their Terms Of Service
April 4, 2023
A post from law firm Polsinelli provides background and guidance regarding a Northern District of California decision that underscores the need for businesses to secure consent for updates in terms-of-service agreements through “an active means of acceptance.” Even though defendant company Bumble, a dating app, prevailed in this case, the ruling makes clear that relying on a presumption of consent by way of passive email or a so-called browsewrap notice is a risk. Responsibility is on the site operator to build in technologies (such as “block cards,” “gateways” and pop-ups) that communicate the updated terms and cannot be bypassed.
For a recap of this case and further analysis of its implications, see a post by Eric Goldman, law professor and associate dean at Santa Clara University School of Law. “Combining this ruling with the Sifuentes ruling,” he says, “I’m now reluctantly declaring that mandatory clickthroughs for amendments are the new best practice, and email notices – even if worded optimally–are not best practice.” Marketing and engineering teams are going to resent it, he adds, but best ignore them. “I’m sorry to be the bearer of bad news, but better to hear it from me than hear it from a judge when it counts.”
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