Clickthrough litigation continues to soar. More companies are embracing online agreements (made valid by regulations like ESIGN and UETA), and are therefore using clickwrap, sign-in-wrap, and browsewrap agreements to present their online terms. But the more companies move online, the more the terms of service used to protect the marketplace, e-commerce site, or mobile app are challenged.
As more digitally-forward businesses move online to take advantage of the speed and convenience of the internet, the terms of service used to protect the businesses and sites are increasingly challenged, and more businesses are trying to enforce their terms in court.
However, most companies don’t realize that their online terms are unenforceable until they bring them to court. Many companies think that the presence of the terms in the footer of a website page and the arbitration clause within it is enough to establish user assent to the terms, but this is not the case.
Our Clickthrough Litigation Trends: 2020 Report goes into greater detail about the different types of online agreements, best practices, and trends in litigation. For example, it’s apparent that plaintiffs are getting more familiar with the concept of online contracts, such as clickwrap agreements, and are coming up with smarter and stronger arguments to prevent their enforcement.
We found that there has been a 50% increase in clickthrough litigation over the last 5 years, and a 15% increase between 2018 and 2019 alone. The more prevalent this becomes and the more legal issues arise relating to online agreements, the more sophisticated the courts will become in their assessment of online agreements.
The three types of evidence mainly used to enforce online agreements are screenshots, affidavits/declarations, and back-end records of acceptance. While having all three can considerably increase your chances of success in court, there are critical factors that influence the efficacy of each type.
Read more of our analyses about clickthrough litigation as we assess the most recent trends in our 2020 report. Our goal is not to prevent you from going to court; our primary aim is to make you as prepared as possible for the litigation that is undoubtedly ahead.
In this 2020 report, you will learn:
Download the Clickthrough Litigation Trends: 2020 Report