Are the terms and conditions of my website always enforceable?

Giselle Ayala Mateus, Esq.

Every time you think about the use of a website for any purpose, keep in mind that once you publish your website you establish a relationship with the public. That public, which may not be as knowledgeable as you about the purpose, features, limitations, and content of the website is a consumer. In general, the consumer is considered the weak part of a contractual relationship, for that reason, in many contexts, the interpretation of the law or a contract may be resolved in favor of the consumer. The logic is this, the consumer has less protection, accordingly, he is entitled to more protection. However, this is not an absolute rule, the more sophisticated the consumer the more strict is the law. Websites, where the content is designed for knowledgable consumers, are subject to rules different from those websites designed for a layperson.

The relationship between the public and the website operator or owner must be defined. Otherwise, the website operator will be subject to unlimited risks. To limit the risk exposure and legal liability, websites usually contain terms or use, or terms and conditions. The accessibility of these terms is very important because terms that are difficult to find may not be recognized in court in case of a controversy. The accessibility of the terms is also important to know whether consumers have accepted or not the terms. Here it is worth noting that acceptance does not need to be expressed, it can be inferred from the circumstances. Considering all this, there are mainly three kinds of terms or agreements, Browsewrap Agreements and Clickwrap Agreements.

The term “browsewrap” agreement comes from the word browser, these are the kind of website agreement that aims to bind the user by virtue of the user browsing the website. Under a browsewrap agreement, the website terms are generally posted on the website via a hyperlink at the bottom of the screen. Browsewrap agreements do not require any active conduct from the user. For that reason, these agreements are only enforceable if there is a conspicuous, i.e., visible, obvious, or notorious. Browsewrap agreements are enforceable if the terms are reasonably conspicuous so that the user can be fairly charged with “constructive notice” that continued use will constitute acceptance of the agreement. In determining the validity of browsewrap agreements, courts often consider whether a website user has actual or constructive notice of the conditions. 

Actual notice means that the user was specifically and expressly informed, constructive notice, is the legal fiction upon which the law understands that a person or entity should have known, as a reasonable person would have, of a legal action taken or to be taken, even if they have no actual knowledge of it.

In the context of browsewrap agreements, courts usually find that continued use of a website is a sufficient manifestation of intent or acceptance where the website contains terms with an explicit textual notice that continued use will act as a manifestation of the user’s acceptance of the terms. However, when terms are linked in obscure sections of a webpage that users are unlikely to see, courts most likely refuse to find constructive notice.

Unlike browsewrap agreements, clickwrap agreements require the active or express consent of the user. A clickwrap agreement appears on a webpage and requires that users consent to its terms and conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction.

To determine whether a clickwrap agreement is enforceable, courts usually apply traditional principles of contract law and focus on whether the user had reasonable notice of and manifested assent to the clickwrap agreement. If a website operator uses a clickwrap agreement on its website it is a best practice that the dialogue box that must be clicked to manifest consent is never marked by default. In other words, website operators must design the website so that the user is required to read and make a reflective choice of clicking.

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