This past December, a Missouri Court of Appeals held that a user was bound by a website’s terms and conditions, even though she was not obligated to click to signify assent to those terms (Major v. ServiceMagic, Inc.).
The court noted that where a user is obligated to click to signify agreement to terms, such “clickwrap” agreements are routinely enforced. Where clicking is not required, a site’s “browsewrap” agreement usually will be upheld if the user has actual or constructive knowledge of the terms and conditions before using the site.
The court distinguished Specht v. Netscape Communications Corp. In that case, when Netscape allowed users to download certain software, a reference to license terms would have appeared only if the user scrolled further down the page. The U.S. Court of Appeals for the Second Circuit held that the terms would not be enforced because users (a) did not receive reasonable notice of the existence of the terms and (b) did not unambiguously assent to those terms. (Interesting side note: The opinion was written by then Circuit Judge, now Associate Justice of the Supreme Court, Sonia Sotomayor.)
Bottom line: If you want your site’s online terms to be enforced, requiring that the user click to denote acceptance is best, but providing notice of, and a link to, the terms can suffice.
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
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