ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Saturday, July 9, 2016

Arbitration Clauses: Gogo Internet Edition

The rise of Wi-Fi on airplanes means that you never have to be without the internet if you don't want to be...which also means that you never have to be without terms of use! A recent case out of the Eastern District of New York, Salameno v. Gogo Inc., 16-CV-0487 (behind paywall), reinforces that those terms of use are binding on you, and, as could probably be predicted, leads to the enforcement of an arbitration provision contained in them.

In this case, the plaintiffs had purchased Gogo's in-flight Internet access multiple times. They claimed that the Internet access didn't work as advertised, with allegations that it was incredibly slow, crashed frequently, or sometimes didn't work at all. (Anecdotally, I have heard people around me on flights complain about this, although I don't know if Gogo was at issue there or if in-flight Wi-Fi is simply fraught with complications.) Despite these alleged ongoing issues, the plaintiffs kept buying Gogo's Wi-Fi, perhaps in eternal hope that it would someday work properly? At any rate, this all culminated in plaintiffs' lawsuit here.

A judge recently found that the plaintiffs are bound by the arbitration clause in Gogo's Terms of Use. All of the plaintiffs used Gogo's Internet access multiple times, and each time they had to indicate that they agreed to the Terms of Use. This wasn't just a one-time thing, which maybe would have made the court more sympathetic, but multiple times of clicking "Agree" without looking at the Terms of Use. And, the court said, those who seek Internet access in the air are experienced Internet users who should be expected to know how to read the Terms of Use contained in the hyperlink.

How to click on a hyperlink, yes, most Internet users know how to do; whether or not the average Internet user necessarily understands all of the legalese found at that hyperlink is another question entirely, of course, but not one addressed in this case. Possibly because the court assumes that all laypersons understand the difference between litigation and arbitration, although in my experience I am not entirely sure that's true. At any rate, the court here held this arbitration clause to be binding.

https://lawprofessors.typepad.com/contractsprof_blog/2016/07/arbitration-clauses-gogo-internet-edition.html

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Comments

The issue with clickthroughs is that there's NO opportunity for negotiation. They are the very model of adhesion contracts. And with the UN pushing for Internet access "as a fundamental human right", sole-source service providers like Gogo may need to rethink their agreement... as this victory could be temporary.

Regardless, I'm really hung up on ToS issues like this, especially when they conflict with negotiated agreements. I don't know about Gogo specifically, but there are similar providers who offer corporate plans with negotiated (and executed) agreements in place. But the actual service used by the end user still requires going through the clickthrough. If the previously-executed agreement doesn't make future clickthroughs inapplicable, should Gogo be entitled to enforce the clickthrough?

Posted by: Jeff Gordon | Jul 10, 2016 6:05:51 AM

That is a really good point. How will the competing layers of negotiated contracts and un-negotiated contracts interact?

Posted by: Stacey | Jul 11, 2016 8:43:34 AM