In Fteja v. Facebook  2012 WL 183896 (SDNY 2012), the Southern District of New York held that the forum selection clause in Facebook’s terms of service was enforceable against a site user.  The user sued Facebook in New York for terminating his account. He essentially claimed he was emotionally distraught over being kicked off of the site.  Facebook made a motion to remove the case to California pursuant to the forum selection clause in its Terms of Service.

Court found the Terms of Service was a hybrid clickwrap/browsewrap stating that it was “somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else — click ‘Sign Up’ — to assent to the hyperlinked terms. Yet, unlike some clickwrap agreements, the user can click to assent whether or not the user has been presented with the terms.” Id. at 838.

I think it was a clickwrap agreement, and this is an example of a court treating a clickwrap agreement as a browsewrap agreement, a trend which has leaked into other cases.  As browsewrap agreements require a little bit more as far as assent from the user this trend is important to note.

The Terms of Service required that to create an account each user had to click on a “Sign Up” button and agree to the following “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service” where the words Terms of Service were a hyperlink to another page which contained the Terms of Service (which you did not have to view to sign up).

The Court held that the forum selection clause was enforceable against the user, and that failure of a user to read the terms does not let them avoid the agreement (user was savy enough to know how hyperlinks work). Court analogized to the cruise ship cases (below) where ticket holders were deemed to have had actual or constructive knowledge of the terms on the back of the ticket regarding forum selection.

See Effron v. Sun Line Cruises, 67 F.3d 7 (2d Cir. N.Y. 1995) (upheld forum selection clause requiring all suits be brought in Greece, where NY resident bought ticket in FL, and was injured in cruise off of Brazil).

See Also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (held that United States federal courts will enforce forum selection clauses so long as the clause is not unreasonably burdensome to the party seeking to escape it.  There, the contract was printed on the back of the ticket.  The customer bought the ticket in WA, the ticket’s forum selection said claims would be heard exclusively in FL.  The customer boarded in CA, and was injured off Mexico.  The court held the clause enforceable.).

A similar decision on Facebook’s terms of use was rendered in E.K.D. v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012).

Other NY courts have followed the precedent in Fjeta.  See 5381 Partners LLC v. Shareasale.com, Inc., 2013 U.S. Dist. LEXIS 136003, 24-25 (E.D.N.Y. Sept. 23, 2013) (“The instant case presents circumstances that are quite analogous to those in Fteja, and the Court agrees with the Fteja court’s analysis. Unlike the license terms at issue in Specht, defendant’s reference to its Merchant Agreement appears on the same screen as the button a prospective merchant must click in order to activate its account. (See Littleton Decl. Ex. B.) Plaintiff did not need to scroll or change screens in order to be advised of the Merchant Agreement; the existence of, and need to accept and consent to, the Merchant Agreement was readily visible. Moreover, whereas Facebook’s Terms of Use were referenced below the button a prospective user had to click in order to assent, defendant’s reference to its Merchant Agreement appears adjacent to the activation button (id.), thereby making it even more clear [*25] that prospective merchants of ShareASale are aware that by clicking the button to activate their account, they manifest their assent to the Merchant Agreement.”).