Days ago, Habeeb Okikiola, who is also known by his stage name Portable, the popular Zazu singer, found himself in legal troubles after failing to meet his contractual obligations to completely pay for a car he had purchased. The Zazu maestro’s arrest sparked widespread criticism because he signed an unfavorable agreement without fully understanding the terms. Interestingly, many people who criticized him are in no better positions, as they probably have also overlooked similar terms of agreement in the past, as we shall discuss below.
This article explores Clickwrap and Browsewrap agreements, as examples of obligations agreements internet users often enter into without reading the terms.
Overview of Clickwrap and Browsewrap Agreements
Clickwrap and Browsewrap agreements are common types of agreements that nearly every internet user encounters at some point. They are fundamental terms in the digital business world, forming the basis for numerous online transactions. Service providers carefully craft these agreements to include terms and conditions that regulate a wide range of virtual responsibilities we undertake on a daily basis. These rage from purchasing goods and services online to downloading software, using social media platforms, and subscribing to various services.
Clickwrap Agreements:
In the realm of e-commerce, clickwrap agreements are agreements that require proactive affirmation from users. This is usually by clicking an “I accept” button, signifying their acceptance of the terms. This method of obtaining consent stands out for its clarity and legal enforceability. Chances are you have clicked an “I agree” button online without reading the terms and conditions you agreed to.
Browse Wrap Agreements:
Browsewrap agreements imply passive consent, essentially derived from the user’s ongoing navigation and usage of a website or platform. By simply surfing the page, the presumption is that you have accepted the terms and conditions of these platforms. You might recall certain webpages where visitors must click prompts to proceed. What many persons overlook while surfing the internet is that by continuing on these pages, they are actually agreeing to the terms and conditions stated in such pages. These are examples of Browse Wrap Agreements.
Legal Implications of Clickwrap and Browsewrap Agreements;
when you can be bound by agreements you entered inadvertently.
Clickwrap and Browsewrap contracts have evolved beyond transactional tools to become central points of legal discussions in the digital era. The enforceability of these agreements has been a topic of legal dispute in various cases.
Mustapha Pteja v. Facebook Incorporated
In Mustapha Pteja v. Facebook Incorporated, 841 F.Supp.2d 829 (2012), the Court was of the view that Clickwrap agreements could be enforced against users for the simple reason that they have consciously indicated assent to the terms by clicking the “I agree” button.
Meyer v. Uber Technologies, Inc
In Meyer v. Uber Technologies Incorporated, 868 F.3d 66 (2017), the court reasoned that where the platform interface a user is interacting with has simple buttons or links which a user is required to click to indicate agreement, such agreement would more likely be enforceable.
Specht v. Netscape Communications Corp
In the pivotal case of Specht v. Netscape Communications Corp. (2002), the US Court of Appeals for the Second Circuit analyzed the validity of clickwrap agreements in the digital realm. The court’s ruling hinged on the concept of manifest assent, a fundamental aspect of contract law requiring a clear and unambiguous acceptance of the specified terms. Here, the court determined that clicking an “I agree” button before downloading software represented a conscious and informed decision by users, thus obligating them to the terms of the clickwrap agreement they had accepted.
The above case highlighted the importance of ensuring that users are fully aware of the terms they are agreeing to when entering into online agreements. It also emphasized the need for companies to make these terms easily accessible and understandable to users. Overall, the Specht v. Netscape Communications Corp. case set a precedent for the enforceability of clickwrap agreements in the digital age.
The implication of the above is what once you, as a user, click an “I agree” button while knowingly interacting with a page, surfing the net or downloading a software, you are bound by the terms stated on that page. This is irrespective of whether you read the terms or not, as long as the terms were made available to you and were conspicuous at the time you “agreed”.
In the case, the court affirmed that digital expressions of consent equally match their physical counterparts, as long as users knowing make these expressions without coercion. When next you are about to click an “I agree” button online, think about this.
Century 21 Limited Partnership v. Rogers Communications
In Century 21 Limited Partnership v. Rogers Communications 2011 BCSC 1196, the Supreme Court of British Columbia found Rogers Communications responsible for violating Century 21’s website terms of use, despite not clicking an “I agree” button. This ruling clarified that once terms of use are visible on a page, using that page implies acceptance of the terms and forms a binding agreement. Essentially, using a page with stated terms of use means agreeing to a contract with the page owner, potentially leading to liability and breach of agreement, as demonstrated in the mentioned lawsuit.
This case serves as a reminder for website users to carefully review and understand terms of use before using a website. It also highlights the importance of clearly displaying terms of use on a website and ensuring that users are aware of them. Failure to do so could result in legal consequences.
Conclusion:
It is easy to review and object to terms in agreements when parties are physically present and consciously forming contracts. However, many internet users enter in to agreements daily without paying so much attention to the terms. Violating these terms could lead to liability and breach of contract. Here, we highlight a few such scenarios to raise awareness about our online and offline actions, urging caution during transactions. Simply clicking an “I agree” button can establish virtual contracts, potentially holding parties accountable even if the persons involved do not read the terms. We recommend that you allocate more time to review the fine print while browsing online before taking significant steps.
When uncertain, seek legal advice.
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