Michael Cohn sued dating website True.com in December 2005 alleging sexual discrimination against males in the site, as it provided special offers for females such as lifetime subscription to email and chat services in the site. The defendants moved to dismiss on the grounds of inadequate forum, as their terms and conditions clearly contained a jurisdiction clause that stated all litigation would take place in Texas; the case was dismissed on those grounds. Cohn appealed, arguing that he had never agreed to enter into a contract with True.com, as their terms and conditions did not constitute a valid agreement.
The reason why this case is important in the history of electronic contract formation is that it is a click-wrap and browse-wrap hybrid. In a typical click-wrap agreement, the parties are given the terms an conditions upfront, and then have to click “I agree” or a similar button. In browse-wrap agreements, the terms and conditions are not presented in the same page, and are usually available through a link. I say that this case is a hybrid because True.com’s terms and conditions had bot elements. When a new customer signed up, he would be presented with the following message:
I am 18-years-old and I have read and agree to the TRUE
The customer would express his acceptance of the terms of service by clicking on the Continue link. However, the terms and conditions were never presented upfront. I can think of at least a dozen e-commerce sites on both sides of the Atlantic that contain similar contract formation formats.
The Californian Court of Appeal agreed with True.com that this was a proper incorporation of terms. They say:
I have to say that the ruling seems very logical and fair, but I’m encouraged by the result because Mr Cohn does not sound particularly nice. I mean, what kind of person goes to a match-making website and gets angry about the preferential treatment given to women? Successful dating sites rely of the availability of females, so the promotions seem to make perfect marketing sense. But more worryingly, is chivalrous behaviour completely dead? I’m guessing Mr Cohen may have been angry about something else, and not particularly by the terms and conditions encountered.