General rules of notice and acceptance
Starting from first principles, a contract can only come into being if both parties (1) are aware of and (2) have accepted the terms of the contract.
Provided the parties are made aware of the contract terms, it does not matter if they have actually read the terms. A sufficient level of awareness can established where a party has actual knowledge of the contract terms (i.e. where it is possible to show that the party was actually given a copy of the terms) or where they have been given reasonable notice of the terms (i.e. where it can be said that the other party has done all that was reasonably necessary to bring the terms to their attention at the time of contracting).
The second key challenge with browsewrap contracting lies in demonstrating that there has been some acceptance by the end user. After all, the end user isn’t doing anything other than looking at the website in their browser. Can that of itself be sufficient acceptance?
- “these terms govern your use of the website”; and
- “if you do not agree to these terms, you should immediately discontinue using this website”.
Care should be taken in using a statement such as “by using this website, you indicate your unqualified assent to be bound by its terms” as we understand that the ACCC may consider such terms to be unfair under consumer protection legislation.
Practical considerations for giving notice of browsewrap terms
As we mentioned above, one of the current unknown factors for browsewrap contracts is the manner in which they should be presented or notified to end users in order to ensure they are enforceable. Since there has been no judicial consideration of this issue in Australia, it is difficult to come up with definitive guidelines. However, the following are some practical considerations that website operators should bear in mind.
(1) Make the words speak louder
- in a prominent position on the website that can be viewed by the user without having to scroll through the website;
- in a relatively large font and in a contrasting colour to other hyperlinks and the background of the website; and
- in conjunction with additional text or images that would direct the user’s eye to the hyperlink.
(2) Be comprehensive
There are many ways in which an end user may happen across a website - they may type the URL of the homepage directly into their browser, or they may click on a deep-link that is displayed on another website, or they may be directed to the website by a search engine.
(3) Keep it real
The level of notice that has to be given for different contract terms is not necessarily equal. Terms that may be considered to be “unusual” or particularly “destructive” of an end user’s rights may need to be displayed more prominently if they are to be enforced.
(4) Account for changes