Last month, Southwest Airlines Co. (“Southwest”) filed a complaint in a Federal court in Texas (where the discount fare airline is based) against Kiwi.com, an online travel site. While the lawsuit revolves around Kiwi’s scraping of airfare data from Southwest’s website, as well as violation of the Computer Fraud and Abuse Act (CFAA), it offers some valuable lessons to e-commerce and online businesses relying on “browsewrap” terms for their website.
In the Complaint filed in Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021), Southwest accuses Kiwi of scraping of the airline’s flight and pricing data off of its website and selling Southwest tickets through its own platform (apparently charging service fees on top).
Southwest, in its breach of contract count, airline alleges that Kiwi violated the airline’s website’s terms and conditions, namely the provisions prohibiting online travel websites from the unauthorized sale of Southwest flights, as well as unauthorized attempts to scrape fare data “for any commercial purpose.” The terms also go on to state that, by accessing Southwest.com, a user also agrees to not use the site for or in connection “with offering any third party product or service not authorized by Southwest.”
When it learned about Kiwi’s scraping and selling of Southwest tickets, the airline sent a number of cease and desist letters informing Kiwi of the above terms, as well as making them aware how they were in breach. Kiwi refused to cease its activities, which led to the lawsuit in Texas district court.
Browsewraps: the ”GROUP C” of online agreements
Although the main thrust of the complaint was the scraping activity and alleged CFAA violations, for e-commerce and other businesses with a presence online, it is important to point out that Southwest’s website terms (the basis of the breach of contract claims against Kiwi) were presented to users of the site as a “browsewrap” agreement.
As opposed to the “clickwrap” or even “sign-in-wrap” style of online contract acceptance which has become ubiquitous in e-commerce sites and apps these days, a browsewrap is an agreement between the website or app and its user that is presented as a hyperlink, usually at or towards the bottom of every screen.
The user is thus presumed to have given their assent to the terms by merely using—i.e., browsing—the website or app. In other words, as it applies to the Southwest lawsuit, the airline is asking the court to enforce the browsewrap terms against Kiwi based in part on Kiwi’s alleged repeated access to Southwest’s site, as opposed to the more direct, physical manifestation of assent found in a clickwrap or sign-in.
The obvious problem is that not every user or visitor to a business’ site or app is going to necessarily convert and go through the registration and/or checkout flow that would put the terms and conditions before them in clickwrap or sign-in wrap format.
Thus, although browsewraps are, essentially, the boarding Group “C” of online agreement mechanisms, much like getting stuck in the C-group it still has its use and is better than not being able to board at all. It’s always better to have the terms and conditions of use available on your site, even in browsewrap format, since it at least can serve as a sort of legal backstop to the casual visitor or, in the case of Kiwi, a not so well-intentioned user.
It remains to be seen how this particular browsewrap case plays out in Texas federal district court. It is possible that the court never even reaches the browsewrap issue, since Southwest apparently gave Kiwi actual notice of the subject terms in multiple cease and desist letters.
Lessons for websites from Southwest Airlines
Although the case is still pending, the Southwest Airlines case already offers some helpful lessons (if not reminders) to e-commerce and online businesses:
This is particularly true of possible competitors and bad actors. In this case, Southwest wisely included bans or restrictions on outside travel businesses and services and their activities in conjunction with the flight and fare data provided to users on their site.
Give Actual Notice to Offenders: Given the browsewrap format itself, it can often be left up to the courts to decide upon whether or not a user (who is suing you or, as in Southwest’s case, you are looking to sue) actually assented to the specific terms of the agreement provided in browsewrap format.
Therefore, as was the case here, if you learn of a user who is in violation of your terms, it is always recommended to send that user a letter with not only a complete copy of your terms but even highlighting the specific provisions which are being violated. This will help to support your case that the user did, in fact, have actual knowledge of the terms and yet continued to violate them. This is especially true in scraping and similar conduct involving public sites and displayed information, where the user may not have an actual account for you to suspend or terminate to stop the improper activities.
Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a startup, technology, and e-commerce law practice advising founders and management teams on company startup, corporate and technology transactions, e-commerce, as well as Internet privacy concerns. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. Our offices are conveniently located along the Camelback corridor in Phoenix’s financial district. For more information about our E-Commerce Law practice, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.