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When enforcing your online agreement, there are three types of evidence that make your agreement more likely to be enforced: affidavits/declarations, back-end records of acceptance, and screenshots. We've covered the first two in other posts; this blog will cover screenshots as a type of evidence.
A screenshot is an image that displays what a screen looked like at the time of sign-up or check-out.
In 29% of cases last year, companies produced screenshots to show user notice and acceptance of their terms. Companies in 61% of these cases were able to produce quality screenshots depicting a solid design and layout of the screen to successfully enforce their terms.
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We have found that courts often rule in favor of the company if the terms are on a page designed to provide actual or inquiry notice to a user. As a result, if the screen design is poor, the screenshot tends to sway the court towards not enforcing the terms.
On the one hand, if the screenshot shows that the screen is optimally designed, the court is highly likely to rule in favor of enforcing the terms. For example, the screenshots provided to the court in Epps-Stowers v. Uber Technologies showed the sequence of screens a user would see when creating an Uber account and showed that the screen was designed in a way that would alert the user that they were entering into a contract via the registration workflow.
Likewise, in Mucciariello v. Viator, the court enforced Viator’s terms when Viator produced a screenshot that showed a well-designed screen, which provided notice to users about the existence of terms.
Related: The three types of online agreements
On the other hand, the court in Wilson v. Huuuge Inc. declined to enforce Huuuge’s terms because Huuuge’s screenshot showed a screen so poorly designed that “the user would need Sherlock Holmes’s instincts to discover the terms,” and therefore afforded the user no notice that the user was entering into any sort of agreement.
Similarly, the court decided not to enforce Juul’s terms in Colgate v. Juul Labs, Inc. upon finding that Juul’s screen design failed to put users on notice of the terms because the hyperlink to the terms was “indistinguishable from the surrounding text” as it was not highlighted, underlined, in all caps, or in a separate box.
Your screenshot only works as hard as you do. In addition to being high-resolution and clearly showcasing the design of the screen at the time of acceptance, the screenshot must indicate that the user had sufficient notice of the existence of terms. If the screenshot doesn't show this, then your agreement is likely to be found unenforceable.
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!