How often do you shop or engage in other activities online? If you are like most people in the 21st century, the answer is âall the timeâ.
There are several types of online contracts. Clickwrap agreements are agreements in which users click “I agree” to agree to the terms. Scrollwrap agreements are where users must scroll to the end of the document before they can click “I Agree” to agree to the terms. The clickwrap and scrollwrap agreements are systematically applied by the courts, as long as they are presented to the consumer in a format where it is clear that by clicking on “I accept”, it means an agreement on the contract in question. Browsewrap agreements are agreements in which users agree to the terms simply by using the website. There is no checkbox for consumers to indicate their consent. Instead, consent is implied depending on the circumstances. Browsewrap agreements are scrutinized by the courts and are not consistently enforced.
The case of Meyer vs. Uber Technologies, 868 F.3d 66 (2d Cir. 2017), demonstrates the elements of a binding clickwrap agreement. In that case, the court applied Uber’s terms of service, explaining that the notice of the terms of service was reasonably visible to consumers and that the manifestation of assent was unambiguous. The court explained that while the reasonableness of the notice is a factual inquiry, a court may nonetheless determine that the notice of inquiry has been established in law in certain circumstances. The court described the presentation of a binding clickwrap agreement:
Meyer, 868 F.3d at 69-71. The court described with approval the following image from the screen:
Identifier. This successful application of a clickwrap agreement contrasts with the unsuccessful application of Browsewrap agreements in many cases.
Some good practices emerge in the context of the above cases and other similar cases:
- Use clickwrap agreements, instead of relying on general Browsewrap agreements;
- Consider using language in the click box that also indicates an element of the terms of service, for example, use “I agree” versus “Create an account”. While “Create Account” may be effective in indicating consent to the terms of service based on link visibility, proximity to click box, and other relevant factors, clear assent language increases the likelihood of application.
- Terms of Service available on each web page.
These factors should be taken into account when designing a website that seeks to create binding contracts with consumers and other people who may interact with the site.