Like traditional paper contracts, online agreements are subject to the fundamental principles of contract law. In either context, there must be a mutual manifestation of assent to form a contract. With respect to online contracts, courts have routinely recognized that an electronic click of a button or checkbox can sufficiently indicate the acceptance of an agreement. However, the language and layout of the webpage must give the consumer reasonable notice that the click of a button or checkbox will indicate acceptance of the contract.
There are three main ways of forming online contracts, each of which utilizes a different way of manifesting assent:
The term “clickthrough” encompasses clickwrap and sign-in-wrap because the user is required to “click through” and acknowledge the agreement prior to accepting the benefit of what the website has to offer. Browsewrap, however, does not qualify as clickthrough because users are not required to expressly “click through” anything to signify agreement to the terms.
PactSafe conducted a study of the clickthrough litigation trends. In our study, we found that clickthrough litigation has skyrocketed since it first appeared in the courts in 2002, increasing 626% between 2002 and 2018. The rise in litigation reflects the increase in business to business (B2B) and business to consumer (B2C) internet companies having to defend the enforceability of their Terms of Service and other online agreement terms.
Though each court tends to take its own approach when deciding this sort of issue, PactSafe’s study indicates that these types of companies have the best shot of successfully defending their online agreement terms if they are able to provide the court with screenshots, affidavits or declarations, and back-end records indicating the date and time of contract acceptance. This combination of evidentiary support best shows the court that the contract was accepted.