Browsewrap Agreements: The Contract You Never See

Many people would be surprised to learn that they are bound by contracts several times throughout the day and they don’t even know it. Every time you visit a website you are generally bound by its terms and conditions even if you never actually see them.

A recent case out of Missouri highlighted the trend towards enforcing these types of agreements. In, Major v. McAllister, the court upheld a browsewrap agreement. A browsewrap agreement is one in which the user is never actually required to consent to the terms and conditions, but is usually behind a hyperlink at the bottom of the homepage. In that case, the user was presented with the browsewrap agreement at every page, and when she submitted her contact information to complete a purchase she was given the notice that by clicking through, she agreed to the terms and conditions. She never actually clicked through to read the terms and conditions of the website, and it happened to contain a forum selection clause that she would later dispute.

Courts have not always held browsewrap agreements enforceable. They have been hesitant to enforce agreements that are behind links not immediately visible and distinct from the background, or even those that are behind links that can only be seen by scrolling to the bottom of the download page. The courts have reasoned that placing the agreements on a submerged screen does not provide sufficient notice to consumers.

Despite the inconsistent decisions regarding browsewrap agreements, there is a trend towards enforceability. Where the user knew, or had reason to know, of the terms of the agreement the court will generally uphold it. Moreover, as long as it is clear that the users will be bound by the terms of the site, it is not necessary that the they actually click on the hyperlink containing the browsewrap agreement. Which means the users are not required to have read the agreement for it to be binding, they only need to be aware that the binding terms exist.

The court’s decision reflects the reality of the way websites are used. How many of you actually read these agreements? Courts recognize this and as such are willing to uphold a browsewrap agreement as long as the user is given a clear opportunity to “click through” and read the terms and conditions. Imagine being forced to click through a license agreement or web site terms of use agreement line by line before being able to enter a website or purchase a product? While users would certainly have a better understanding of what they agreed to, they would go mad in the process.

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