Clickwrap and Browsewrap Agreements

13 August 2004

When you register with a new Web site you want to use, the registration process often asks you to click "I Accept" to some agreement governing your use of that Web site. If you've ever wondered if that was now an enforceable contract, the simple answer is almost certainly "yes." Tech lawyers call them "clickwrap" agreements.

Another variation on this theme is that some Web sites have a link at the bottom of the page that says something like "Terms and Conditions of Web site Use." The are called "browsewrap" agreement. If you're ever really bored and you've completed your entire "to do" list (the last time this happened for me was in 1964), you might want to click on one of these browsewrap agreement links. Typically, what you'll find is an extremely one-sided agreement in favor of the Web site owner. I know because I write those one-sided agreements for my clients.

Conceptually, courts have a bit more of a problem finding browsewrap agreements enforceable. After all, there was no symbolic moment where there was a manifestation of assent equivalent to when you sign a paper agreement or click "I Accept" to a clickwrap agreement. Nonetheless, most courts, most of the time, will find that even browsewrap agreements are real agreements.

Still, both clickwrap and browsewrap agreements don't have thousands of years of history behind them like a traditional quill and parchment contract. So, while my general answers clearly favor the idea that these types of agreements are perfectly okay, I think that some caution is in order if your business relies on these types of agreements.

What you can do is take some steps to enhance the likelihood that if you ever had to rely on one of these agreements in a court of law, that some judge who is as old as quill pens doesn't give you some blank look when you tell him that you don't have a piece of paper with a signature to show him.

It starts with reasonable notice. You want these online agreements to be as obvious as possible. If you decide to use "browsewrap," the "Terms and Conditions" link should appear on every page and your websurfer shouldn't have to scroll down to see the link.

In a perfect world, you would use click-wrap rather than browse-wrap and you would make the viewing of the terms mandatory. You could accomplish that by graying out the "I Accept" button (i.e. the "I Accept" button won't work) until your websurfer has scrolled to the bottom on the agreement.

Another good practice is putting a notice near the "I Accept" button that says something like, "By clicking 'I Accept,' you are entering into a legally binding agreement. You must read the agreement before you click 'I Accept.'"

Now, while we all know that almost nobody will read the agreement anyway, that's okay. Like the old cliché, you can lead a horse to water, but you can't make him drink, it probably won't hurt you if Joe Websurfer clicks "I Accept" without reading the agreement if you've taken these steps.

One final best practice is keeping a record of the moment that your websurfer clicked "I Accept." This may help some court feel comfortable in believing that your online contract is like a "real" contract.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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