As clickthrough litigation becomes more prominent, the courts become more sophisticated in their evaluation of not only the agreements, but the types of evidence used to enforce them.
The three types of evidence most commonly used to enforce online agreements are: affidavits/declarations, back-end records of acceptance, and screenshots.
Affidavits/Declarations: These are sworn statements from key personnel about the company's contract acceptance methods.
Back-end records of acceptance: Data captured that indicates who agreed to the contract, as well as other key data points that can show that the contract was accepted.
Screenshots: Images depicting what the screen looked like at the time the contract was presented to the user.
This blog will focus on affidavits/declarations as a type of evidence.
Declarations or affidavits are written statements or sworn testimony from key personnel familiar with the contract acceptance process.
According to PactSafe's 2020 report on clickthrough litigation trends, companies in 67% of cases last year produced declarations or affidavits that described the process by which users agreed to the company’s terms. In 69% of these cases, companies produced high quality declarations or affidavits and successfully enforced their terms.
We have found that a declaration is more likely to be successful when the person providing it has pertinent knowledge of the system being described and/or is in a role that familiarizes them with the contract acceptance process.
Also, the declaration in Egan v. Live Nation Worldwide, provided by the VP of Product Management at Live Nation, walked through the account set-up process, described the screen, buttons, and hyperlink, and stated that it was “impossible” to complete transactions on the site without first agreeing to the terms. This level of detail successfully convinced the court to rule in favor of Live Nation’s motion to compel arbitration.
Our study shows that, on the other hand, when the declarant does not have intimate and detailed knowledge of the process by which a user accepted a set of terms, or if the declarant is not in a position to have such knowledge, the court is less likely to rule to enforce the agreement.
For example, in Aerotech, Inc. v. Boyd, the court declined to compel Aerotech’s motion to arbitration because the declarant did not have detailed knowledge of the system and was unable to testify to the system’s authenticity and data integrity.
Additionally, the court in Beattie v. TTEC Healthcare Solutions refused to enforce TTEC’s terms because the declarant was not directly involved in the contract acceptance process, and the declaration failed to detail what specific information was collected upon the contract acceptance and what (if any) security measures were in place to ensure the integrity of the system.
Just having an affidavit or declaration as a submitted type of evidence is not enough to enforce your online agreements (and therefore arbitration clause). It must meet a certain criteria to be successful. Namely, it must be provided by an employee with personal knowledge of the agreements, the system, the screen, and the ways in which data is collected.
For more details about the types of evidence used to enforce agreements and trends in clickthrough litigation, download our Clickthrough Litigation Trends: 2020 Report.