FAYETTEVILLE — Accessing a website doesn't necessarily constitute an agreement, the Arkansas Supreme Court said Thursday in reversing and remanding a Washington County Circuit Court case.
Sharon Roller, Valerie Murphy and Emily Smith sued TV Guide Online Holdings in a class action lawsuit claiming when they accessed TV Guide’s website, TV Guide downloaded a “flash cookie” to their computers without their knowledge, permission or consent. The cookie had the capacity to monitor, capture and report information about their online activity to TV Guide, according to the lawsuit.
Circuit Judge Mark Lindsay dismissed the case saying subject matter jurisdiction and venue wasn't proper in Washington County.
TV Guide attorneys argued by using the TV Guide website, the parties consented to any lawsuits being heard in Los Angeles, where the company is based. TV Guide asserted use is governed by an agreement found in the “terms and conditions” page of the website, which is accessible by a link at the bottom of each page.
Tech Talk (w/logo)
What’s A Cookie?
A cookie is a piece of text that a web server can store on a computer user’s hard drive. It allows a website to store information on a user’s machine and later retrieve it. This is often used for storing user preferences or user identification numbers the website can use on subsequent visits to provide customized information.
Source: Staff Report
“People just don’t generally scan the homepage of a website to see if there are terms of use and then go read them and, if you try to do that, good luck trying to make any sense out of it,” said Bill Putman, the Fayetteville attorney who filed the case.
TV Guide contended people consented to the terms of the “browsewrap” agreement simply by using its website.
The court said TV Guide didn't meet its burden of proving venue in Washington County, where the plaintiffs live, was improper.
The court also said TV Guide failed to establish a mutual agreement existed between the parties, with proper notice of the agreement given to the plaintiffs. Both parties must agree to the particular terms of a contract, the court said.
“You have a link that is not conspicuous and doesn’t give anybody notice of what these terms are,” Putman said. “You just can’t have a contract under those circumstances.”
In order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. If there's no meeting of the minds, there's no contract, the opinion said.
“TV Guide argues that appellants manifested assent through the use of the TV Guide website. However, for a party to assent to a contract, the terms of the contract must be effectively communicated,” the opinion said. “In this case, TV Guide has not demonstrated that the terms of the agreement were communicated to appellants.”
The case, filed in 2011, was one of several filed by Putman contending the practice of using flash cookies to secretly track Internet use amounts to computer trespass or unlawful use or access to someone’s computer, which is illegal under Arkansas privacy laws.
The suits contend the information gleaned using flash cookies may be sold to other companies without the computer users’ knowledge. They also allege a civil conspiracy to withhold from the public the true nature and purpose of the embedded programs.
None of the suits have been to trial. Most have been resolved out of court and the settlements are confidential. Some of the companies Putman sued are Mattel, YouTube, Skype, Google, Apple and Pandora Media.