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A clickthrough is one of the quickest ways to collect user consent to your online legal agreements. By presenting these agreements as a box or button users check or click in order to agree, businesses make the sign up process smoother while keeping this data secure. But people often wonder whether or not clickthrough agreements are legally enforceable. Does checking that box or clicking that button count as a real contract? Can it hold up in a court of law?
The answer, of course, is "it depends."
Many legal cases have come to define the parameters of an enforceable clickthrough agreement. The following are three of the key legal cases:
Feldman v Google
First, there is Feldman v. Google, Inc., 513 F.Supp.2d 229 (E.D.Pa. 2007), which stipulated that in order for a clickthrough to be enforceable, users must be presented with “reasonable notice of the terms, and manifested assent of the agreement.” While Feldman argued that he did not get into any agreement or sign any contract with Google, the courts found that he could not proceed with the purchase of advertisement without checking a box agreeing to the above terms and conditions, thereby making the Google’s terms enforceable.
Specht v Netscape Communications Corporation
The second is Specht v. Netscape, 306 F .3d 17 (2d Circ. 2002). This determined that a clickthrough is enforceable if the terms are conspicuously presented, and it is evident that checking the box is akin to agreeing to the presented terms. Netscape tried to compel arbitration as per their agreement, but their agreement was too inconspicuously presented to be enforceable.
Bragg v Linden Research, Inc.
In the case of Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Penn. 2007), the courts decided against Linden Research, because while their clickthroughs were well-designed, they “exploited unequal bargaining power” in crafting oppressive, unconscionable terms.
The case law for the legality of clickthrough shows that among other things, the enforceability of clickthrough is dependent upon its design and terms.
In order to be considered enforceable, a clickthrough agreement must be designed according to best practices.
Clickthrough terms need to be displayed prominently.
Users have the responsibility to inform themselves of the terms before clicking “I agree.” To enhance enforceability, the host should have the words “Terms of Service” written in font and color that allows the reader to identify that they should click the link or read the scroll box to understand their rights. The terms themselves should be written in a font that allows the user to easily read the language.
Users must give active, affirmative consent.
Clickthrough agreements must require the user to actively click “I agree” to the terms of service before they can proceed with their requested services. To enhance enforceability, the site design must not allow the user to proceed without giving active consent—clicking a box. Do not precheck accept boxes. This is bad practice and banned under GDPR.
Not only must the design of your clickthrough agreements be on point, but the terms themselves must follow certain best practices.
Your clickthrough agreements should be digestible to the average person.
Your users are at an inherent disadvantage when it comes to understanding your Terms of Service. You cannot assume they can decipher legalese and tech talk. Terms of Service need to be written in a way that someone without a background in privacy can read, comprehend and give informed consent. The agreement should contain all the terms that the users is charged with knowing.
Do not exploit unequal bargaining power
Your users only have the option to click agree or leave the site. You cannot use this advantage to take more from the user than necessary. Abuse of power can lead to a clickthrough agreement being deemed unenforceable. In contract law, unequal bargaining power (contracts of adhesion) is frowned upon. However, even with the lack of bargaining power, Terms of Service are typically enforceable if they clearly list the requirements for use of the site and avoid demanding the user to give up too much in order to use the site. Clickthrough agreements will typically be “take it or leave it” but they cannot be “we take all and you leave with nothing.”
Do not bury controversial terms of an agreement.
For example, if you plan to use somebody’s personal information for marketing purposes you should request consent for that purpose in a manner that is distinct from the rest of the Terms of Service. Hidden consents can come back to haunt hosts who cannot enforce the Terms of Service in whole or part because of the formation of the terms. The clearer and more distinguishable the terms and consents are, the more likely an agreement will be enforceable.
Each year, PactSafe publishes a report on trends in clickwrap litigation and best practices. This year's highlights the impact of the pandemic on the enforceability of clickwrap, with stats from each industry. Download our Clickwrap Litigation Trends: 2021 Report today!