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If your terms were to be enforced and your clients were to take you to court, could your terms hold up? Do you even know what you need to bring to court? Even more, what types of evidence are more likely to be successful in enforcing your online agreement in court?
Based on PactSafe’s 2019 study, Clickthrough Litigation Trends, courts determine whether or not a clickthrough agreement or browsewrap agreement is valid by looking at:
We have found that these factors can be proven by three main types of evidence: screenshots, affidavits or declarations, and back-end records of acceptance.
Whether these types of evidence exist (and are therefore able to be brought into court) depends on the company’s recordkeeping capabilities. Many companies fail to keep accurate records of which users signed the agreement, which version of the agreement is live at any given time, and which version the user signed. Failure to maintain such records can become the company’s Achilles’ Heel as they try to enforce their online agreement at trial.
Screenshots portray the screen as it looked to the user when he agreed to the contract. Of the cases where the business relied on screenshots alone as evidence of online contract acceptance, we found that 67% were successful. Screenshots enable to court to assess whether or not the user was given sufficient notice of the agreement based on the design and layout of the webpage.
Because the webpage design is an important aspect in determining the validity of a contract, screenshots can go a long way in making a case. However, we found that parties to a lawsuit have less success of proving contract acceptance when they use screenshots as the only form of evidence, compared to using a combination of screenshots with other types of evidence (i.e., affidavits, declarations, and back-end records).
Affidavits and declarations constitute sworn testimony, and they are usually given by an engineer or developer that had a hand in building the clickthrough agreement.
Providing this type of evidence can be costly and isn’t always enough to convince a judge that a company’s Terms are valid. We found that of the cases that relied solely on affidavits or declarations as evidence to prove contract acceptance, 78% were successful. These chances improved, however, when the affidavits or declarations were used in conjunction with other evidence, such as screenshots and back-end records.
In our study, we found that back-end records of contract acceptance are perhaps the most compelling piece of evidence a company can provide when their clickthrough agreement is contested. Back-end records are created at the time of contract acceptance and prove which user accepted the agreement, the date and time of the acceptance, and the version of the agreement the user accepted.
Courts often find a contract to be valid when back-end records are brought in as evidence because they capture proof of acceptance with crucial data points. However, many clickthrough agreements are not designed to automatically record the kind of information a court deems critical in proving acceptance of online contracts.
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!