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Do I need positive consent to amend the Terms of Service? -Media & Entertainment Law

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Many websites and Internet-based services rely on standard click-through terms and conditions, often referred to as “browsing wrap contracts.” These contracts typically provide that the service provider may amend the browse-wrap agreement at any time, and your continued use of the website or service is considered consent to the amendment. A common industry practice is to provide notification to users of a fix via email without the need for positive approval or consent for the fix. but, Sifuentes v. Dropbox, Inc.In a recent ruling from Northern California, the court ruled that this standard practice was insufficient to bind users to amendments. This is an important decision for media and entertainment companies. This is what happened.

of SifuentesThe court will inform the user of the Dropbox Terms of Service amendment without requiring any other “actions such as button clicks or checkbox checks” to confirm that the user has agreed. We have determined that Dropbox’s method of sending mass emails is inadequate. Fixed. David Angel Sifuentes signed up for Dropbox in 2011 and agreed to Dropbox’s Terms of Service, which did not include an arbitration clause at the time. On March 24, 2014, Dropbox modified its Terms of Service to add an arbitration clause, giving users the option to opt out of the arbitration clause. Sifuentes continued to use Dropbox’s services during this period. Dropbox emailed Sifuentes about this change, but did not require any additional action from Sifuentes. When Sifuentes sued Dropbox in 2020 for various allegations resulting from a data breach in 2012, Dropbox began to enforce arbitration in accordance with the modified Terms of Service. Citing the case of the Ninth Circuit Court of Appeals, the court ruled that Dropbox cannot force amendments to the Terms of Service that Sifuentes did not positively agree with. SifuentesSlip op.at 6–8 (quote) Bermanv. FreedomFinancialNetwork, LLC, 30 F.4th 849, 856 (9th Cir.2022)).of Berman, The Ninth Circuit Court of Appeals had to meet both in order for the website’s Terms of Service to be enforceable. “(1) The website provides reasonably prominent notices about the conditions under which consumers are bound. When (2) Consumers take some action, such as clicking a button or checking a box, that clearly indicates their consent to these terms. ” Berman, 30 F.4th at 856 (add emphasis).In finding support for Sifuentes, the Northern District of California applied this standard to Fix Also in the terms of use of the website.

In reaching this decision Sifuentes It stands out as an outlier, as other courts have granted a compelling amendment to the browse wrap contract without some positive consent from the user.There may be inconsistent decisions about what is needed to implement a browse wrap contract, but the U.S. District Court for Northern California is an influential federal district court and ignores it. Sifuentes There are risks. It should be noted that in the future, Internet-based service providers may not be able to simply email a user an update notice of the Terms of Service to bind the user to the modified Terms. I have.In the light of Sifuentes, Best practice is to require the user to click the box indicating positive acceptance of the modified terms of use the next time they log in.

Sifuentes v. Dropbox, Inc., No. 20-cv-07908-HSG, Dkt. No. 40 (NDCal. June 29, 2022)

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