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Website Terms and Conditions Enforceable with Sufficient Notice
A Texas District Court recently ruled, in a summary judgment, that the terms of a “browsewrap” license agreement are enforceable against a user of the website if sufficient notice is provided. In the federal case of Southwest Airlines Co. v. BoardFirst, L.L.C., Southwest, a Dallas-based domestic airline carrier, sought and obtained injunctive relief against BoardFirst, a company whose sole purpose was to secure certain Southwest boarding passes for customers that would entitle them to board their flight first. Southwest customers seeking such boarding passes would pay BoardFirst a fee and in return, BoardFirst would log on to the Southwest website and check in the customers at the appropriate time, allowing the customers access to the desired boarding passes.
In granting a permanent injunction in favour of Southwest, the court found that BoardFirst had violated the airline’s online terms and conditions of use, which stated that the website was only to be used for personal, non-commercial purposes. Evidence also indicated that sufficient notice of such terms was provided to BoardFirst, if not as a hyperlink at the bottom of the Southwest website, then when BoardFirst received a cease-and-desist letter from Southwest. As the court observed, “the validity of a browsewrap license turns on whether a website user has actual or constructive knowledge of a site’s terms and conditions prior to using the site.” BoardFirst, however, continued using the Southwest website following such notice, and was therefore bound by, and found to have violated, its online contractual obligations.
For a copy of the decision, visit:
Southwest Airlines Co. v. BoardFirst, L.L.C.