Online Browsing Is Binding
03/09/10
A recent Missouri court found that posting in an obvious location an online link to the website’s terms and conditions was sufficient to bind a website user to those terms, even without evidence that the online user ever clicked on the terms and conditions or admittedly never clicked “I agree.”
Missouri courts hold that traditional principles of contract law apply to online agreements as they do to traditional written contracts. A person may assent to a website’s terms of use via two types of agreement. “Clickwrap” agreements require the user to click on a box or button, assenting to the website’s terms of use. Alternatively, “browsewrap” agreements specify that use of the website constitutes acceptance to its terms of use. If the website’s user has actual or constructive knowledge of the site’s terms and conditions prior to using the site, courts will generally uphold browsewrap agreements.
In a recent Missouri case, Major v. McCallister, the website user argued that because she had to click on a hyperlink (visible on each screen of the website) in order to view the website’s terms of use, she should not be held to those terms. The Missouri Court of Appeals, Southern District, affirmed the circuit court’s finding in favor of the defendant website company. The court stated that “[f]ailure to read an enforceable online agreement, as with any binding contract, will not excuse compliance with its terms. A customer on notice of contract terms available on the internet is bound by those terms.” Quoting the Missouri Supreme Court, the court noted that where there is immediately visible notice of the existence of contract terms, unequivocal manifestation of acceptance may not be required.
Therefore, failure to read the terms of use or other contract terms for a website simply because the website requires the user to click on a hyperlink will not excuse the user from being bound by those terms.
For more general information, visit Business Litigation, James F. Freeman III or Holly Fisher.
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