Clickwrap vs. Browsewrap
Website Terms typically come in two flavors: “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the website, and “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.
One of the most difficult issues relating to Website Terms involves modifications and updates. Website Terms typically include a provision granting the website owner the right to modify the terms unilaterally. This makes sense in practical terms; a website owner cannot be expected to continue to operate under the same terms indefinitely and it would not be feasible to negotiate every update with individual users. At the same time, however, Website Terms are contracts and, under black letter contract law, contract modifications require acceptance by both parties. A website operator ideally should require users to affirmatively accept each updated version of Website Terms, for example, by presenting the updated terms and requiring a click acceptance when the user first logs in after the change. But where obtaining such affirmative acceptance is not feasible, a website operator may nonetheless be able to enforce changed terms against users if it gives users sufficient notice of the change and informs them that continued use of the website constitutes acceptance.
It should be noted, though, that courts in some cases have looked less favorably on website operators’ attempts to modify Website Terms unilaterally, particularly where users are not given adequate notice or the changes are applied retroactively. For example, the Ninth Circuit held in Douglas v. Talk America (9th Cir. 2007), that an individual’s assent to changed Website Terms could not be inferred where the individual had not actually received notice of the changes. In Douglas, the defendant Talk America provided long distance services to the plaintiff Douglas. When a dispute arose, Talk America attempted to enforce an arbitration provision contained in updated terms that it had posted to its website. But Talk America had never given Douglas notice of the updated terms and Douglas was not required to visit the Talk America website in order to continue using the Talk America services. The court noted, “[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.”
In light of the issues noted above, the following are some steps that website operators may take to increase the likelihood that Website Terms will be enforceable against site users:
- When possible, Website Terms should be implemented using clickwraps that give clear notice and require affirmative assent, rather than through browsewraps. If a browsewrap is used because a clickwrap is not feasible – e.g., where a website does not require users to register and does not otherwise include functionality to interact with users – website operators should present the terms as conspicuously as possible (and should recognize that their Website Terms may prove more difficult to enforce).
- If a clickwrap is used, website operators should be prepared to produce evidence that users must actually accept the Website Terms to access the website or make a purchase on the website, and be able to show the specific version of the Website Terms that were in place at the time that any given user indicated acceptance.
- A prominent notice should be included on the website regarding the Website Terms and the terms should be easily accessible to users (including for download and printing). Website Terms should be easy for users to understand and particularly important terms – such as disclaimers, limitations of liability and dispute resolution provisions – should be conspicuous. Also consider adding a prominent “last updated” notice to Website Terms.
- When modifying Website Terms, consider obtaining users’ express acceptance of the updated terms, if possible. If obtaining such express acceptance is not feasible, the users ideally should be provided with clear advance notice of any changes and a statement that continued use of the website following implementation of the updated terms constitutes acceptance of those terms.
- Regardless of how terms are updated, website operators should not assume that they will be able to enforce updated terms retroactively. Indeed, website operators should consider making clear in their Website Terms that newly added provisions will not apply to disputes arising prior to the adoption of the new provisions.