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Do Amendments To Terms Of Service Require Affirmative Consent? – 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
“browse-wrap agreements”. These agreements usually
provide that the service provider may amend the browse-wrap
agreement at any time, and a user’s continued use of the
website or service is considered consent to the amendment. The
general industry practice is to provide notice to users of an
amendment via email without requiring affirmative acknowledgement
or consent to the amendment. However, in Sifuentes v. Dropbox,
Inc.
,a recent decision from the Northern District of
California, the court found this standard practice to be
insufficient to bind a user to the amendment. It’s an important
decision for media and entertainment companies. Here’s what
happened.

In Sifuentes, the court ruled that Dropbox’s method
of mass-emailing users to provide notice of amendments to
Dropbox’s terms of service, without requiring some other
“action, such as clicking a button or checking a box”, is
insufficient to find that the user agreed to the amendment. David
Angel Sifuentes signed up with Dropbox in 2011 and affirmatively
agreed to Dropbox’s terms of service, which at the time did not
include an arbitration provision. On March 24, 2014, Dropbox
modified its terms of service to add an arbitration provision and
provided users with an option to opt-out of the arbitration
provision; Sifuentes continued to use Dropbox’s services
through this period. Dropbox provided notice to Sifuentes of this
change via email but did not require any further actions from
Sifuentes. When Sifuentes sued Dropbox in 2020 for various claims
arising out of a data breach that occurred in 2012, Dropbox moved
to compel arbitration pursuant to its modified terms of service.
Citing 9th Circuit precedent, the court ruled that Dropbox cannot
enforce any amendments to its terms of service that Sifuentes did
not affirmatively agree to. Sifuentes, slip op.at
6–8 (citing Berman v. Freedom Financial Network,
LLC
, 30 F.4th 849, 856 (9th Cir. 2022)). In Berman,
the 9th Circuit required two elements to both be met in order to
make a website’s terms and conditions enforceable: “(1)
the website provides reasonably conspicuous notice of the terms to
which the consumer will be bound; and (2) the
consumer takes some action, such as clicking a button or checking a
box, that unambiguously manifests his or her assent to those
terms.” Berman, 30 F.4th at 856 (emphasis added). In
finding in favor of Sifuentes, the Northern District of California
applied this standard to amendments to a website’s
terms of service as well.

In reaching this decision, Sifuentes stands out as an
outlier as other courts have found amendments to browse-wrap
agreements enforceable without some type of affirmative consent
from users. While there may now be inconsistent decisions on what
is required to enforce a browse-wrap agreement, the U.S. District
Court of the Northern District of California is an influential
federal district court and ignoring Sifuentes comes with
risks. Moving forward, Internet-based service providers need to be
aware that only emailing users with notices of updates to the terms
of service may be insufficient to bind the users to the amended
terms. In light of Sifuentes, the best practice may be to
require users—the next time they log in—to click a box
demonstrating affirmative consent to the amended terms of
service.

Sifuentes v. Dropbox, Inc., No. 20-cv-07908-HSG, Dkt.
No. 40 (N.D. Cal. June 29, 2022


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