Nearly everyone is familiar with agreeing to terms of service when signing up for an account online. Normally, users click a checkbox or button on the webpage at issue to indicate that they agree to the business’s terms of service. But what happens when, months or years down the line, businesses want to update these terms? This bulletin provides a set of best practices for updating terms of service via mass emails.

Background and Risks

For some entities, it is possible to obtain a user’s assent to new terms by installing pop-up windows on the business’s webpage that require the user to once again click a button confirming that they agree to updated terms. Normally, these pop-up windows make it impossible to view content on the webpage until the user has accepted the terms and the window recedes. Case law has demonstrated that this is an effective way to update terms of service. See, e.g., Alkutkar v. Bumble Inc., No. 22-CV-00422-PJH, 2022 WL 4112360, at *6 (N.D. Cal. Sept. 8, 2022), recons. denied, No. 22-CV-00422-PJH, 2022 WL 16973253 (N.D. Cal. Nov. 16, 2022) (granting motion to compel arbitration where “the user was forced (and still is forced) to click ‘I accept’ demonstrating their assent to the updated Terms, which were hyperlinked”).

For some businesses, however, this method is unavailable. Instead of a pop-up window, these businesses may choose to send mass emails alerting their users to changes in their terms of service. Normally, these entities take the position that the user – by continuing to use their account after receiving notice of the updated terms – has assented to the new terms.

This method of updating terms can be risky. For example, in Sifuentes v. Dropbox, Inc., the U.S. District Court for the Northern District of California found that the user was not bound by updated arbitration terms that were provided to the user only via email. No. 20-CV-07908-HSG, 2022 WL 2673080, at *4 (N.D. Cal. June 29, 2022), appeal dismissed, No. 22-16367, 2023 WL 2455684 (9th Cir. Jan. 20, 2023). Although the business in Sifuentes had submitted evidence that “it had a policy of mass emailing its many subscribers about updated terms of service,” it could not produce any evidence (such as a read receipt) to demonstrate that the user at issue had ever opened the email conveying the terms. Id. Moreover, the court expressed skepticism that an email alone – without some more explicit action manifesting assent – could possibly be considered “reasonably conspicuous notice” that would bind the user. Put simply, a business is always on firmer footing when it can demonstrate that the user affirmatively accepted updated terms by clicking a box or button. See Alkutkar, 2022 WL 4112360, at *6.  

Best Practices

Courts routinely find that continued use of a service constitutes assent to terms provided over email when the text of the email notifying the user of the terms is clear and describes the new terms at issue. That case law can be distilled into a guide for drafting emails that notify users about changes in terms. 

First, the subject line of the email should clearly state that the terms are being updated and should not contain any unrelated information.  Compare Sadlock v. Walt Disney Co., No. 22-CV-09155-EMC, 2023 WL 4869245, at *5 (N.D. Cal. July 31, 2023) (enforcing terms sent via email with subject line “We're updating our Subscriber Agreement”), with Sellers v. Bleacher Rep., Inc., No. 23-CV-00368-SI, 2023 WL 4850180, at *7 (N.D. Cal. July 28, 2023) (refusing to enforce updated terms conveyed in an email with subject line of “Execs to Mets: Please stop”).

Second, the body of the email should describe the changes being made and include a hyperlink to the full agreement. See Ashirwad v. Charter Commc’ns, LLC, No. 21-CV-02101-AJB-DDL, 2023 WL 3564938, at *5 (S.D. Cal. Mar. 20, 2023) (citations omitted) (presence of hyperlink to agreement meant that the terms were “easily available to the contracting parties” and was “the twenty-first century equivalent of turning over” a document). Importantly, the text in the email that describes the updates to the terms must be completely consistent with the updated terms themselves. See, e.g., Lipsett v. Popular Bank, No. 22-3193-CV, 2024 WL 111247, at **1–3 (2d Cir. Jan. 10, 2024) (refusing to enforce updated terms where letter notifying user of change in terms was inconsistent with the new terms; the notice letter stated that the only way the user could avoid the arbitration agreement was to close his account within 60 days, whereas the agreement itself allowed existing customers to reject the arbitration provision. Additionally, the text of the updated terms and conditions stated that there “continued” to be an arbitration provision, despite the fact that there had been no arbitration provision when the user opened his account.)

Third, the email should state the consequences of the user continuing to use their account after the updated terms take effect and set forth the timeframe in which the new terms will be effective. In other words, if the user will be bound by the modified terms by continuing to use their account, the email in question should say so clearly and prominently. See Ashirwad, 2023 WL 3564938, at *5 (enforcing updated terms where the email “called out the reference to the attention of the employees by placing the program name in italics and clearly stating the consequence of failing to opt out of the program within the deadline.”); also compare Mark Thorne v. Comerica Bank, No. CV233178MWFRAOX, 2023 WL 6194370, at **1, 3 (C.D. Cal. May 25, 2023) (employees were bound by new arbitration terms contained in email where email explained that employees would be bound by the agreement if they remained employed and did not opt out and where employees received several reminders about the agreement during the opt-out period), with Platt v. Sodexo, S.A., No. 822CV02211DOCADS, 2023 WL 4832660, at *1 (C.D. Cal. July 25, 2023) (arbitration agreement was not formed where plaintiff had originally enrolled in benefits plan that did not contain arbitration agreement and where email notifying participants that the plan had changed did not mention the arbitration provision or that continued participation in the plan would constitute assent to the new terms).

Conclusion

Sending out mass emails to notify users of changes to terms of service is a relatively simple and generally cost-effective method of modifying terms. However, this method involves some risk that a court may conclude that users did not have sufficient notice of the updated terms and refuse to enforce the new terms. Using the best practices outlined in this bulletin will increase the visibility of the updated terms and bolster their enforceability.