By Robert Hawn
This process of providing notice to a site user of the terms that govern the site, and stating that the site user is subject to these terms by using the site, is a way of forming a contract between the site operator and the user. Essentially, the link provides notice to the end user that using the site is subject to certain terms. This approach is really quite elegant, because it allows the site operator to impose all sorts of terms without cluttering up the site. It’s no surprise that the hyperlink approach is ubiquitous.
The only problem with it is that it doesn’t work.
What the court is saying is that the standard practice of providing a link to website terms at the bottom of a webpage is useless. You just can’t create an enforceable contract that way. Having said that, the court is a bit unclear on what you have to do. It does provide a clue, however, when it says that you need to prompt a user to take an “affirmative action to demonstrate assent.”
This is a blog and not legal advice or opinion. Neither I nor my firm provide advice or opinion except following a formal engagement and then only regarding specific factual situations.