Blue or Pink? The Enforceability of Hyperlinked Contracts
September 5, 2024
Privacy Plus+
Privacy, Technology and Perspective
This week, we’ll explore how hyperlink "color contrasts" can impact the enforceability of online agreements.
Background:
Hyperlinks are clickable elements on websites that direct users to other pages, documents, or sections of the same page. They are commonly used to link to important terms such as Terms of Service, privacy notices, or other contractual agreements. For a hyperlink to be effective, it must be visible and easily recognizable.
An entire body of law exists regarding the enforceability of a contract involving a hyperlink. Key factors include:
+ Whether the hyperlink must be “clear and conspicuous” (e.g. for consents) or may be merely “reasonably conspicuous” (e.g. for arbitration agreements);
+ How close the action button must be to the disclosure;
+ Wording of the “Call to Action” and clarity of what is expected;
+ Type font and size; and
+ How “cluttered” (distracting) the visual space may be around the relevant buttons, or how much “white space” must be left.
For now, let’s look at a few recent cases that address only one aspect of this issue – namely, color contrast.
Color Contrast:
Overall, and against the widest variety of backgrounds and conditions, the most instantly-visible “contrast” combination is black on bright yellow. (This is why this combination is universally used for highway warning signs of curves and other upcoming hazards.) On the other end of the spectrum, some color combinations provide so little contrast that only the most eagle-eyed people can see them (e.g. light blue on aluminum-gray), or blend so totally into the background that they become actual camouflage (e.g. green/brown/gray). For most websites, a color contrast somewhere in the middle is needed.
Blue or Pink? Blue is one of the most common “hyperlink” indicators (we use it on our firm’s website). Because blue is so common, some have suggested that blue-on-white is necessary to be adequately conspicuous. Professor Eric Goldman has explained recently that that question came up in the Edmundson v. Klarna case in 2023, where the Second Circuit decided black-on-white would be sufficient (under the particular facts of that case), though “blue font [would be] a better signal to consumers that text contains a hyperlink.”
You can read the Edmundson case by clicking here:
https://scholar.google.com/scholar_case?case=9549680864919374593&hl=en&as_sdt=6&as_vis=1&oi=scholarr
And you may read Prof. Goldman’s blog by clicking here:
Bright Pink has also emerged as an acceptably contrasting color against a white background, according to a federal district court in California in Hooper v. Jerry Insurance Agency, LLC. The facts and holding of Hooper are described in a recent National Law Review article, which you can read by clicking on the following link:
Our Thoughts:
We doubt that what constitutes a “reasonably” or “clearly” conspicuous notice in websites must await case-by-case, common law development from website cases.
There is already an existing body of expertise on “notices” which is wide, deep, and old, developed from safety studies on highway signs, warning labels on containers, directions for pedestrians, and many other sources. Much of this expertise provides an objective way of establishing what may be “reasonable” in a given environment.
The Consumer Product Safety Commission has many regulations that govern “color contrasts,” size and placement of fonts, avoiding “clutter,” and much more. The International Standards Organization (ISO) has others. Many specialized regulators specify their own requirements. “Human Factors” experts have long been available for advice and expert testimony on how people actually perceive proposed warnings and directions.
Consulting these resources can provide a practical approach to ensuring hyperlinks are sufficiently visible and recognizable.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.