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Hyperlink in Email Can Create Binding Terms

Stained-glass seal of U.S Court of Appeals for the Second Circuit which decided hyperlink caseIn Online Terms can be Binding, even if You don’t have to Click!, I discussed enforceability of a website’s “browsewrap” terms of service. This post discusses how an email hyperlink can create binding contractual terms.

Lawsuit Brought in New York

Elizabeth Starkey filed suit in the U.S. District Court for the Southern District of New York against travel company G Adventures, Inc. The suit alleged that a G Adventures employee sexually assaulted Starkey during a vacation trip.

Shortly after booking her vacation, G Adventures sent three emails to Starkey. Each email included a hyperlink to G Adventures’ terms and conditions. Each was preceded by text emphasizing that Starkey was agreeing to the terms and conditions.

Hyperlink Terms Limits Lawsuits to Canada

Among those terms was a provision stating that any lawsuit pertaining to the terms must be brought in Ontario or Canadian courts. Starkey alleged that she was not bound by that provision because she did not click on the hyperlink in any of the emails.

The U.S. Court of Appeals for the Second Circuit disagreed. (Starkey v. G Adventures, Inc.)

G Adventures’ emails thus sufficiently directed Starkey’s attention to the Booking Terms and Conditions by means of a hyperlink and language advising Starkey to click on the hyperlink. This method serves the same function as the method of cross-referencing language in a printed copy promotional brochure and sufficed to direct Starkey’s attention to the Booking Terms and Conditions. Both methods may be used to reasonably communicate a forum selection clause.

So, as is the case with a website, an email can create binding terms by including a hyperlink to those terms and and bringing that hyperlink and its significance to the attention of the email’s recipient.

Photo credit: United States Court of Appeals for the Second Circuit

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
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