Web site operators who wish to bind site visitors to certain terms should probably do more than simply display those terms on the Web site. Rather, as a precondition to further action on the site, users should be required to click their assent to those critical terms that are sought to be enforceable.
This issue came home to roost in the recent case Sprecht v. Netscape Communications Corp.In that case, the plaintiffs complained that as a result of usage of SmartDownload software, Netscape and its parent company, America Online, Inc., wrongfully transmitted private information about users’ file transfer activity in violation of the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. Netscape sought to compel arbitration of the case, arguing that binding arbitration was required by the relevant software licensing agreement. The plaintiffs responded that they were not bound to arbitrate the case because the manner in which the license agreement was presented did not lead to consent to arbitration or other terms in the agreement. A federal trial judge in New York agreed with the plaintiffs.
