IN 2024, few sights are as familiar in the digital landscape as a “terms and conditions” link, easily brushed by on the way to buying a new television or downloading a new software. When it comes to using ride-share apps like Uber and Lyft, riders may be able to waive rights away through a hasty scroll through tiny print, but can they be bound by a hurried click of agreement?  

Three years after the Supreme Judicial Court knocked Uber for the way it presents riders with its terms of service, the ride-share company is back before the state’s highest court for allegedly failing to make it clear that a trial was off the table for a rider who ended up permanently paralyzed after his driver crashed. 

The SJC gave Uber an order to retool its digital contract system in 2021 – to give notice that riders are, in fact, agreeing to certain terms. Nothing can make a person standing in the winter chill read through pages of print before being able to request a ride home, but the court ruled the way Uber presented its terms and conditions during the app registration process was not clear and conspicuous enough to make sure riders had notice they were signing a contract and agreed to be bound by it. 

“Uber has chosen to disregard these straightforward instructions,” plaintiff William Good’s attorneys wrote in filings in 2023. After the last case, “Uber sought again to bind Massachusetts users to a set of contractual obligations. But in doing so, it ignored virtually every one of the Court’s directives.”

In late April 2021, Good opened his Uber app. But before hailing a car, the restaurant chef had to dispense with a pop-up. 

The pop-up showed an image of a clipboard with an ‘X’ on it, with a message saying “We’ve updated our terms” and “We encourage you to read our updated terms in full,” before providing links to the terms of use and privacy notice. Good claims he checked a box indicating agreement and proceeded into the app without reading the contract. 

Uber argues that this pop-up made the terms clearly available. “Good could access the Rider App’s Terms of Use in only one step, and that process was as clear and simple as it could possibly be,” the company wrote in its brief.

Among other things, the new Uber contract limited the company’s liability, disclaimed warranties, and contained an agreement that would mandate the use of arbitration rather than going to court for any legal claims.

Five days later, Good left work and used the app to hail an Uber, which sent him driver Jonas Yohou. Good claims that Yohou began driving at high speed as they approached Good’s Somerville neighborhood, remarking that he could “fly around on those streets,” before the car swerved and collided with a parked vehicle. Good was left permanently quadriplegic from the crash.

But when he tried to sue Uber and the driver, arguing that Yohou had a history of reckless driving yet made it through the screening process. He also argued that Uber’s fare system encourages fast and reckless driving. Yet Good found he was bound by a provision he had never seen – the arbitration agreement in the 12-page contract he never looked through.

The lower court reviewed this new terms of service notification and concluded Good did not receive reasonable notice of the terms, therefore no binding contract was created when he clicked through the pop-up. 

Uber’s type of rider agreement is known as “clickwrap,” where a user is able to click a button signaling agreement without necessarily looking through the terms. Competitor Lyft uses a contract system known as “scrollwrap,” in which users have to scroll through the contract in order to agree at the end.

The case, which will be argued before the high court on Friday morning, has serious implications for the validity of Massachusetts clickwrap contracts, among the more common in digital marketplaces. The Chamber of Commerce of the United States, the world’s largest business federation, submitted a brief arguing that the pop-up offered clear notice and the check of agreement indicated clear consent to be bound by a contract, and the lower court’s interpretation of the notice laws was “unduly restrictive.” 

The SJC expressed wariness three years ago with the impact of these quick agreements, which most users do not read. To form a contract, the court may decide users need to be presented with a forced scroll through all the terms, or, as Uber argues, the solution could be simple as a standalone page presenting a link to terms and a checkbox.