If you've followed our blog at all, you already know that using a browsewrap agreement to bind consumers to terms on your website isn't the best practice for organizations looking to keep legal risk away. But we often receive the question -- well, isn't everyone else doing it? Sure, we knew there were some sites or companies that weren't overly concerned with protecting legal risk and were much more concerned with the "user experience" or the "aesthetic value" of the page. (We'll put those in quotation marks -- because it's plenty easy to preserve both while providing the user more-than-adequate notice.)
Still, we received the question enough to take a look deeper into the numbers. Who's using a browsewrap? What does it look like? Where is it displayed on the page? We surveyed the top 1,000 sites on the web to help you better understand current web legal practices -- and why some of those just don't cut it.
Wait. First, what's a browsewrap agreement again?
If that dark day comes where your company is served notice from the court, you'll need to not only prove that the consumer agreed to your terms by accessing the site and had proper notice -- but also the version to which the given consumer agreed. Still, nearly half of all sites surveyed (46.6%) don't even bother to place a date of last revision on the terms of service page. A great practice here is to also provide links or an opportunity to review older versions of the terms of service, but that's rarely implemented -- only 19% choose to display these.
It's understandable that many of these sites are still using outdated practices regarding browsewrap agreements -- much of the applicable case law is relatively new and judicial opinions have shifted in favor of the consumer in recent years regarding online legal agreements. But just like your parents always told you: doing something because all your friends are doing it probably isn't the best idea. Still need to convince someone in your office that it might be time to revise that old browsewrap agreement? Here's a cool infographic to share.
Concerned about the enforceability of the browsewrap on your website? Sign up for a free legal risk assessment today.