“Yet Another Hierarchical Officious Oracle” Is Unable to Create an Enforceable Online Agreement

by Lee Gesmer on May 14, 2013

“Yet Another Hierarchical Officious Oracle” is Yahoo!, of course. And, its lawyers should be embarrassed by Yahoo!’s inability to create enforceable online Terms of Service (TOS).

The issue arose in Ajemian v. Yahoo!, decided by the Massachusetts Appeals Court on May 7, 2013. In this case the plaintiffs were the administrators of a decedent’s estate. They wanted access to the decedent’s email account to let his friends know of his death and memorial service, and later to locate assets of his estate. Yahoo! refused to provide the online password, and the administrators filed suit in Massachusetts to compel access.

Yahoo!, in turn, argued the suit should have been brought in California and, in any event, it was too late. These arguments were based on Yahoo!’s terms of service which provide, in part, as follows:

You and Yahoo agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California…. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.”

The decedent in this case had opened his account in 2002, and he died in 2006. In the interim Yahoo! had updated its TOS to provide that “any rights to your Yahoo! ID or contents within your account terminate upon your death,” providing Yahoo! with another basis on which to deny the administrators access to the email account.

According to the Appeals Court, this was the first time a Massachusetts state court had been asked determine to the enforceability of an online agreement of this sort. The court found that Yahoo! was unable to establish the legal requirements necessary to enforce this provision:

The burden is on Yahoo! to demonstrate that the forum selection and limitations clauses in the TOS were reasonably communicated and accepted. … The only information on this point is Yahoo!’s affidavit stating that “[p]rospective users are given an opportunity to review the Terms of Service and Privacy Policy prior to submitting their registration data to Yahoo!.” Standing alone, this is not enough to establish that the forum selection provision and limitations provision of either the 2002 or the amended TOS were reasonably communicated, or to whom they were communicated. We do not know, and cannot infer, that the provisions of the 2002 TOS were displayed on the user’s computer screen (in whole or in part). It is equally likely … that the user was expected to follow a link to see the terms of the agreement. If that was the case, the record would need to contain information concerning the language that was used to notify users that the terms of their arrangement with Yahoo! could be found by following the link, how prominently displayed the link was, and any other information that would bear on the reasonableness of communicating the 2002 TOS via a link.

Yahoo! submitted nothing to establish whether or how the provisions of the 2002 TOS were accepted by [Yahoo! end users] or how the provisions of the amended TOS were accepted by [Yahoo! end users] , or how they manifested their assent.

Although forum selection clauses contained in online contracts have been enforced, courts have done so only where the record established that the terms of the agreement were displayed, at least in part, on the user’s computer screen and the user was required to signify his or her assent by clicking “I accept.” … This is known as a “clickwrap” agreement. … By contrast, a “browsewrap” agreement is one “where website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen.” Although forum selection clauses have almost uniformly been enforced in clickwrap agreements, we have found no case where such a clause has been enforced in a browsewrap agreement.

The fact that this case arose in the context of administrators seeking access to a decedents email account made it a harder case. In fact, the Appeals Court held that even if Yahoo! had used a clickwrap agreement, it would not be reasonable to enforce the forum selection and limitations clause against the administrators based on a variety of considerations, including the fact that the case was in probate court, that the decedent lived in Massachusetts, that the administrators are in Massachusetts and the scope of the forum selection clause (which, the Court of Appeals noted, was of unreasonable breadth for a consumer contract).

Nevertheless, the court’s holding with respect to the enforceability of “clickwrap” agreements and lack of enforceability with respect to “browsewrap” agreements stands as the current state of the law in Massachusetts, probate court or not. Simply put, browsewrap areements are not enforceable under Massachusetts law.

The inability to create an enforceable online license seems almost endemic to online companies. Craigslist failed in the 3Taps case (post here). Zappos failed in the Security Breach Litigation (post here). CollegeSource failed in its case against AcadamyOne (post here).

And, companies seem not to realize that even if they do have a proper clickwrap agreement, they cannot retain the right to modify the agreement unilaterally. See “Sign This Contract. By the Way, We Can Modify It At Any Time.” Is This Enforceable?

In the Yahoo! case the Massachusetts courts joins the majority across the country: get consent by means of a click, and if you update your TOS, get consent again.

Of course, this case also raises a bigger issue surrounding email accounts and social media – who is entitled to access an email account after the owner’s death? What about a Facebook, Twitter or other social media account? Facebook has addressed the digital afterlife by allowing relatives to memorialize an account after its owner has died. And, Google lets account owners “plan their digital afterlives” with “inactive account manager.” So, perhaps a second lesson from this case—and a more important one—is to exercise one of these options where it is available, or make sure your heirs are able to access your online accounts by using your passwords after your death.*

*Personal note: when my father died in 2010 he had not left a record of his AOL email log-in information. However, AOL was more accommodating than Yahoo! A phone call to AOL was all it took to get his user name/password.

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