We surveyed browsewrap agreements across 1,000 top websites. Here's what we found out.

Jun 29, 2015 7:09:42 AM

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?

Sure! A browsewrap agreement is a type of online legal agreement that attempts to bind you to a given set of terms just by accessing or using a site. There's no checkbox or "I AGREE" button for you to click, just often a terms of use/service link listed at the bottom of the page. As court decisions have evolved over recent years, it's becoming more and more clear that burying a link in the footer of the page does not give the necessary actual or constructive notice to construct a legally binding agreement.

How many sites are still choosing to bury that link at the bottom the page? More than 90% of sites still require you to scroll down the page to even view a link to the terms of use. Even then, the link is often hardly noticeable. 53% are hidden or blend in with other page elements, even after the user has scrolled all the way to the bottom of the page. These 53% are, at best, playing with fire when it comes to the enforceability of their online agreements. At worst, it's simply a matter of time until they're served with a lawsuit that they just can't win.

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.

 

 

Kyle Robbins

Written by Kyle Robbins