Clicking "I Agree" means a
contract – or does it?

In the Annual Meeting session on “Web Site Agreements: I Didn't Agree to Those Terms, Did I?” presented by the Committee on Cyberspace Law of the Section on Business Law, participants learned that online agreements can be more or less than they seem.

Critical to whether online terms are binding are placement of the terms, and whether or not a person has the opportunity to review and understand the terms. In other words, a page cannot time out before a typical person can read all terms and conditions listed.

Terms and conditions need to be clearly marked and available. Juliet Moringiello, professor at Widener University School of Law in Harrisburg, Penn., explained that the terms don't need to be a click-through page, but need to be clearly accessible. She noted that the physical placement on the page, the color and the size of font are all relevant in showing a viewer how to locate the terms and conditions.

She said in Hubbert v. Dell, the court found that the color of the link – the blue that has come to signify a link on the web - and its placement on each page gave adequate notice. In Sprecht v. Netscape, the court found that the notice was insufficient as it was “below the fold” and a user might not know to scroll down.

Clear notice of terms includes presenting conditions during registration, having a scroll box appear, ensuring a hyperlink is clearly visible or requiring the user to click on the screen with terms before proceeding.

Kathleen Porter, business partner and co-chair of the Intellectual Property and Technology Group at Robinson & Cole LLP, discussed giving a viewer a meaningful opportunity to review terms.

She pointed out that terms and conditions must follow generally accepted practices for paper documents, such as font size and conspicuousness. In addition, as noted, viewers must be able to read at their own pace, be able to go back and forth within the document and have more than one opportunity to review.

The Federal Trade Commission requires that language be clear and jargon-free. Moreover, FTC Dot-Com Guidelines disapprove of a pop-up box that disappears after one viewing so that the consumer has no chance to later review or compare the terms.

Porter said there cannot be an agreement to something the individual did not see.

Notice of terms must precede the consent although consent can take several forms, said Christine Kunz, professor of law at William Mitchell College of Law in St.Paul, Minn. “Express consent can involve clicking an icon, clicking words or typing specified words while continuing to the next page, submitting a query, downloading software or perhaps just using the site can imply assent.”

The challenges for both companies and consumers are changes to the terms and conditions. For example, if a company changes its privacy policy to sell customer data or posts a notice that it is increasing fees, those changes might not be binding. While the user may have agreed initially, he or she did not have a chance to agree or disagree with the revised terms and was not able to negotiate with the company.

As a result, even the term “subject to change without notice” may not be enforceable.

This presentation and related materials are available at www.ababusinesslaw.com.

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