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When it comes to enforcing your online agreements, there are three types of evidence that increase your chances of success. These are affidavits/declarations, screenshots, and back-end records of acceptance.
Back-end records are records that contain data captured at the time of contract acceptance. This data indicates who accepted an agreement, when the agreement was accepted, and what version of the agreement that was live at the time of acceptance.
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In 24% of cases over the past year, companies produced back-end records to show user acceptance of the terms. Companies in 65% of these cases were able to produce robust back-end records and successfully enforce their terms.
We have found that when used as evidence to try to compel arbitration, back-end records are most successful when they showcase specificity and a high level of detail – that is, that a particular user signed a particular agreement at a particular time.
For example, the back-end records provided by Southwest Airlines in Tanis v. Southwest showed that when the employee checked a box that affirmed her acceptance of the terms, an electronic record was created that included
the employee name, the employee ID, and the date and time that the employee executed the acknowledgement.
Similarly, in Holley v. Bitesquad.com, the back-end records provided by Bitesquad included sufficient detail to prove that the plaintiff accepted the agreement because the record consisted of an audit trail that included “the email address to which the employment packet is sent and the times at which it is sent, viewed, and signed by the employee.”
On the other hand, our study has revealed that back-end records that cannot prove which users signed which agreement and that do not provide details of individual acceptance are largely unsuccessful in court.
For example, the court in In re: Facebook Inc., Consumer Privacy User Profile Litigation refused to enforce Facebook’s terms because although Facebook could show the content of its terms and the sign-up flow for using the platform, Facebook was unable to provide individual records of acceptance to prove that specific users agreed to a particular version of the terms.
Likewise, the court in Nager v. Tesla declined to enforce Tesla’s terms after Tesla was only able to produce “just some random document” that had no connection to the customer or transaction at issue, rather than individual records of acceptance.
Related: Three types of online agreements
While agreements that use back-end records as evidence are more likely to be successful than those that use other types of evidence, just having it isn't enough. To ensure its success, it must have enough detail to prove that who, specifically, accepted an agreement, what version they accepted, and when they accepted.
Update: We have released the 2021 report of clickwrap litigation trends with more up to date best practices and case rulings from the last year. Our Clickwrap Litigation Trends: 2021 Report also analyzes the impact of the pandemic and the boon of eCommerce on the trends we see. Download your copy!