4 ms·

In the US, at least, so-called “browsewrap” agreements, those that are linked in a website footer and purpose to bind you simply for visiting a site, are legall

by comex 8y ago

In the US, at least, so-called “browsewrap” agreements, those that are linked in a website footer and purpose to bind you simply for visiting a site, are legally unenforceable. However, “clickwrap” agreements, where you get a text box with the terms and have to click “agree”, are enforceable – despite the unlikelihood that even a single user read the terms before agreeing. I don’t like either type, but it’s important to distinguish them. You won’t be bound just for receiving an HTTP response, any more than you can bind someone else by sending an HTTP request; there has to be a human in the loop knowingly choosing to agree to something, even if they don’t know what it is they’re agreeing to. That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less.

tagrun 8y ago
> those that are linked in a website footer and purpose to bind you simply for visiting a site, are legally unenforceable. Before going to other countries: are you referring to a very recent local Florida state law (after Vitacost.com, Inc. v. James McCants, found with a quick search), or is there an even newer federal US law? > That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less. Given no such law existed even in Florida until last year, I'd be more cautious before extrapolating this internationally.
- comex 8y ago
  I'm a bit confused what you mean. There is no law, but quite a bit of precedent in various U.S. jurisdictions, including from the federal appeals courts of two different circuits, as listed on Wikipedia: https://en.wikipedia.org/wiki/Browse_wrap https://en.wikipedia.org/wiki/Browse_wrap The Vitacost case you mentioned is not listed there but, looking at the decision, seems to be a straightforward application of two of the precedents (Nguyen v. Barnes & Noble and Hubbert v. Dell); it doesn't disagree with them. I did forget one complication when writing my previous post, which is, at least according to the aforementioned Hubbert v. Dell, there are some circumstances where a browse-wrap agreement may be enforceable: > In 2005, the Illinois Appellate Court ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell products were repeatedly shown the words "All sales are subject to Dell's Term[s] and Conditions of Sale", including a conspicuous hyperlink, over a series of pages. The court found that this repeated exposure and visual effect would put a reasonable person on notice of the "terms and conditions". But that's fairly different from a typical browse-wrap agreement.
danShumway 8y ago
There's an interesting side effect to adblocking, which is that sometimes even the clickwrap agreements get blocked and the user never gets a chance to see them in the first place. I wonder how many sites I've visited where blocking 3rd-party scripts broke their Javascript and prevented them from ever giving me a TOS popup. I have no way of knowing for certain, but given that I regularly find websites where the box does pop up but doesn't work properly, it's probably not zero. IANAL, but if I was a site operator and I really needed absolutely every visitor to my website to be legally bound by a TOS, a Javascript-powered clickwrap agreement would not personally help me sleep any better at night.

by comex 8y ago

tagrun 8y ago

> those that are linked in a website footer and purpose to bind you simply for visiting a site, are legally unenforceable. Before going to other countries: are you referring to a very recent local Florida state law (after Vitacost.com, Inc. v. James McCants, found with a quick search), or is there an even newer federal US law? > That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less. Given no such law existed even in Florida until last year, I'd be more cautious before extrapolating this internationally.

comex 8y ago
I'm a bit confused what you mean. There is no law, but quite a bit of precedent in various U.S. jurisdictions, including from the federal appeals courts of two different circuits, as listed on Wikipedia: https://en.wikipedia.org/wiki/Browse_wrap https://en.wikipedia.org/wiki/Browse_wrap The Vitacost case you mentioned is not listed there but, looking at the decision, seems to be a straightforward application of two of the precedents (Nguyen v. Barnes & Noble and Hubbert v. Dell); it doesn't disagree with them. I did forget one complication when writing my previous post, which is, at least according to the aforementioned Hubbert v. Dell, there are some circumstances where a browse-wrap agreement may be enforceable: > In 2005, the Illinois Appellate Court ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell products were repeatedly shown the words "All sales are subject to Dell's Term[s] and Conditions of Sale", including a conspicuous hyperlink, over a series of pages. The court found that this repeated exposure and visual effect would put a reasonable person on notice of the "terms and conditions". But that's fairly different from a typical browse-wrap agreement.

danShumway 8y ago

There's an interesting side effect to adblocking, which is that sometimes even the clickwrap agreements get blocked and the user never gets a chance to see them in the first place. I wonder how many sites I've visited where blocking 3rd-party scripts broke their Javascript and prevented them from ever giving me a TOS popup. I have no way of knowing for certain, but given that I regularly find websites where the box does pop up but doesn't work properly, it's probably not zero. IANAL, but if I was a site operator and I really needed absolutely every visitor to my website to be legally bound by a TOS, a Javascript-powered clickwrap agreement would not personally help me sleep any better at night.