Browsewrap Disclosure Held Insufficient to Constitute “Prior Express Written Consent” Even for a Healthcare-Related Call
Folks involved with selling health insurance, or anything else for that matter, and who rely upon browsewrap website terms might want to give Sullivan v. All Web Leads, Inc., No. 17-cv-1307, 2017 U.S. Dist. LEXIS 84232 (N.D. Ill. June 1, 2017) a careful read.
Although the ruling took place at the pleadings stage, and precious few issues were actually resolved, the Court’s approach to a complaint alleging calls made to individuals requesting health care quotes after submitting personal information on a website is important for industry participants to consider. First, the Court had little problem holding that the calls did not fit within the FCC’s health care message exemption, as the primary purpose of the calls was to pitch a service rather than to remind the customer of a health care treatment or related activity. Second, and of broader application, the Court refused to determine as a matter of law that accepting terms and conditions authorizing calls appearing below a website’s “submit” button constituted valid “prior written consent” because the plaintiff had pleaded that he had not seen the disclosures. The Court reasoned that the plaintiff’s lack of actual knowledge, coupled with the complaint’s allegations that the consent disclosures were “unreasonably camouflaged in the context of the webpage,” stated a plausible basis to conclude that the notice was not “clear and conspicuous,” as required by the FCC’s 2013 telemarketing ruling.
Notably, the Court did not just rely on the age-old distinction between “browsewrap” and “clickwrap” disclosures—indeed, the ruling seems to conflate the two at times. Rather, the Court looked at the consumer’s experience with the website to determine whether a valid agreement to receive telemarketing calls was established. Crucially, the website did not reveal that the quotes would be sent by phone. This fact, the Court concluded, would lead the consumer to believe that by clicking “submit,” he or she would receive a quote immediately via the webpage, and not via a subsequent call from the company. On this basis, the Court denied the defendant’s motion to dismiss, although it held the door open to further consideration of the issue, noting, “[t]he Court feels that the legal enforceability of All Web’s consent language is best left for later in the litigation when there is a fully developed factual record.”
So keep that in mind, folks. If your disclosures are not separately accepted via a “click” feature, and the overall website experience might confuse a customer regarding whether or not to expect future calls, you may not have clear and conspicuous written consent to telemarket to numbers obtained via a website—no matter what the fine print might say.