In Douglas v. U.S. Dist. Court , 495 F.3d 1062 (9th Cir. 2007), the court considered whether a service provider may change the terms of its service contract by merely posting a revised contract on its website. Plaintiff Joe Douglas had contracted for long distance telephone service with America Online. Talk America subsequently acquired this business from AOL and continued to provide service to AOL’s former customers.
Talk America then changed certain business and legal provisions in its online contract but never notified Douglas that the contract had changed. Unaware of the changes, Douglas continued using Talk America’s service for four years.
A footnote to the first sentence quoted above states, in part, that Douglas should have been “notified that the contract has been changed and how [because] [w]ithout notice, an examination would be fairly cumbersome, as Douglas would have to compare every word of the posted contract with his existing contract in order to detect whether it had changed.”
There may be multiple ways to provide that notice – for example, via e-mail to all users, or via a pop-up or redirection when each user logs in (the Ninth Circuit did not address how notice must be provided). The important point is that the user must be notified, and must have an opportunity to review the changed provisions, before they take effect.
- Online Terms can be Binding, even if You don’t have to Click!
- You Can’t Change Online Terms Solely by Email
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.