Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This is still a grey area of law. There has been no clear English case to rule on this, and although this American case is not binding on English courts it is interesting for its persuasive value to see how the law in this area develops in other countries. That said, English traditional contract law principles should be applied to online contracts, just as with any offline contract, and there are centuries of precedent for that.
‘There is a spectrum of risk with cases involving incorporation of web site terms. The least strong position legally for a web site owner would be not to refer to the terms and conditions at all, next best would be doing as ServiceMagic did here, next would be having a tick box (to which the user must positively opt-in) with a clear statement showing acceptance of the terms and conditions, and then finally the best method on the legal spectrum of risk would be to require the user to have to scroll through the terms in a separate pop-up box and then accept at the bottom of that box. That final method – although best legally – is clearly commercially undesirable and most sites no longer require users to open up a separate box and scroll to the end. The compromise used now is generally the positive opt-in tick-box method. That’s not guaranteed to work legally, although it has become generally accepted good practice.’