In the Information Age, an increasing amount of data is communicated, stored, and shared electronically, and legal agreements are no exception. Digital agreements are more convenient, environmentally friendly, and are cheaper than their paper counterparts, making them the medium of choice for online businesses and Internet users alike. But, while fewer and fewer agreements are being printed, mailed, and physically signed, their ramifications are no less real. As with any other agreement, properly constructing the terms of a digital agreement is crucial if it is to serve its purpose as a legally-enforceable contract. How then should we design our websites and agreements to leave them enforceable, but without destroying the ease of use that is their biggest advantage?
Two types of digital agreements are commonly seen: the clickwrap agreements and the browsewrap agreements. Clickwrap agreements are agreements that the website user is presented with a list of terms and conditions, which are often available in a scroll box, and users are required to click on an “I agree” box. For browsewrap agreements, the website’s terms and conditions are generally posted on the website via a hyperlink at the bottom of the screen, there are no boxes to click on, and the users give their assent simply by using the website. The two “wrap” agreements differs in two aspects: (1) did the contract offeror provide reasonable notice of the proposed term, and (2) did the offeree unambiguously manifest assent to them.
If a website contains an “I accept” button and a digital agreement is displayed in a scroll box, whether the agreement is enforceable still depends on whether the design of the website suggests that the button means the users accept the terms you want users to be bound to, and not anything else. In Sgouros v. Transunion, before obtaining a credit report, a user was presented with a page requiring him to enter several fields of personal information, a service agreement in a scroll box, an “I Accept & Continue to Step 3,” and a block of text right above the click button that read “you understand that by clicking on the ‘I Accept & Continue to Step 3’ button below, you are providing ‘written instructions’ to TransUnion Interactive, Inc. authorizing TransUnion Interactive, Inc. to obtain information from your personal credit profile from Experian, Equifax and/or TransUnion….” The 7th circuit declined to enforce the service agreement because TransUnion’s site told the user that clicking on the box constituted her authorization for TransUnion to obtain her personal information. TransUnion failed to get the message out that the “I Accept” button meant agreeing to the service agreement.
No one wants to be hit with the unpleasant surprise that their digital agreements were actually never enforceable. Rather than finding this out by getting hit with an adverse verdict after the fact, it is crucial for website owners to proactively evaluate their digital agreements to ensure that they conform to the rapidly evolving expectations of users and of our judicial system.