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Georgia Examines Enforceability of Arbitration Agreements in Smartphone Apps

Jake Carroll


  • The Georgia Court of Appeals evaluated the enforceability of online and app contracts, particularly focusing on arbitration agreements within them.
  • Thornton signed up for Uber’s app, where the terms and conditions, including the arbitration agreement, were accessible via a hyperlink that was covered by the on-screen keyboard during registration.
  • The Court of Appeals determined there were factual disputes about whether Thornton had assented to the arbitration agreement due to the hyperlink being obscured during registration.
  • The court highlighted factors that affect the enforceability of such agreements, including the clarity and conspicuousness of the hyperlink, its location, and the duration it is displayed.
Georgia Examines Enforceability of Arbitration Agreements in Smartphone Apps
Images By Tang Ming Tung via Getty Images

In Thornton v. Uber Technologies, Inc., the Georgia Court of Appeals addressed an issue of first impression when it joined courts across the country to evaluate the enforceability of online and app contracts, and the arbitration agreements within them.

The fact-pattern is familiar to anyone with a smartphone: Thornton signed up for Uber’s rideshare app on his Android. He followed a set of screens to set up his account and ultimately entered his payment information on the final registration screen: either a credit card or PayPal. Near the bottom of the registration screen was a hyperlink to Uber’s Terms and Conditions, which included an arbitration agreement. Thornton presented evidence however, that when he started to enter his credit card information, the keyboard covered the hyperlink to the terms and conditions. Thornton completed his registration in May 2016 and began using Uber’s services.

Uber presented affidavit testimony that an email was later sent to Thornton with the updated terms and conditions on November 22, 2016, and that Thornton continued to use Uber’s services after that date.

After an Uber driver murdered Thornton in 2018, Thornton’s mother (appellant) filed suit for claims of wrongful death and negligence against Uber. Based on the terms and conditions contained in the app’s registration, Uber moved to compel arbitration. The trial court granted to motion to compel arbitration and stayed the case, unpersuaded by appellant’s argument that Thornton had never assented to the arbitration agreement within the terms and conditions.

Upon interlocutory review however, the Court of Appeals reversed the trial court and agreed with appellant, holding that questions of fact precluded a finding that Thornton assented to the arbitration agreement within Uber’s hyperlinked terms and conditions (also known as “browsewrap agreements.”) The court observed that a number of factors are considered when evaluating assent and enforceability of such agreements:

  1. Font/Style: The hyperlink should be “clear against a white background with a blue hyperlink that draws attention to the terms and conditions, such that a reasonable smartphone user would know that more information would be found if she clicked on the hyperlink.”
  2. Location: The hyperlink must be conspicuous—in a prominent location so as not to be overlooked or inadvertently covered. Specifically, the court in Thornton took issue with the fact that the hyperlink was concealed by the on-screen keyboard.
  3. Duration of Time: The hyperlink should be displayed for a reasonable amount of time so that the agreeing party has sufficient opportunity to see it.

These factors should be used as a guide for parties who seek to include arbitration agreements in hyperlinked terms and conditions within apps or online.

Notably, Uber could not rely on the fact that Thornton was sent updated terms and conditions via email to show acceptance or assent to the terms and conditions. Specifically, Uber was not entitled to rely of the presumption of delivery that is otherwise afforded to mail by the mailbox rule. In a slightly humorous example of the legal professional adapting to new technologies, the court cited a 1939 opinion regarding transmission of a telegram in declining to extend the application of the mailbox rule to email. The issue of whether O.C.G.A. § 10-12-15 would have changed this outcome was not before the court.

Ultimately, while the opinion is helpful as concerns what is not enforceable, it does not offer a clear statement of what is enforceable. For example, does the text color always need to be white with a dark background, or will other color combinations work? Is the bottom of a webpage a sufficiently prominent location for a link to an arbitration agreement or should it be at the top? What duration is sufficient to satisfy the requirement for a “reasonable amount of time”? In light of the Thornton decision, it would seem that the more factors met, the less risk that a hyperlinked arbitration clause will be found unenforceable.