US court says online terms and conditions enforceable even without having to tick a check-box

A US court has ruled that online terms and conditions could be enforceable even where the user did not have to do something specific to show that she had read them. In this particular case, Victoria Major sued ServiceMagic, the web site provider. Like many sites, ServiceMagic’s involved the user having to go through several pages in the order process. On the last page, the user had to press a ‘Submit’ button. Next to that button was a hyperlink to the terms, with the phrase: ‘By submitting you agree to the Terms of Use.’ Ms Major did not like the service she received as a result of her order through the web site and sued ServiceMagic in the Missouri courts. ServiceMagic claimed that Ms Major was suing in the wrong courts, as the terms and conditions stated that the courts of a different State applied. Ms Major countered that the terms and conditions had not been incorporated into the contract properly, as she had not had to do something specific such as tick a box. The Missouri court disagreed with her and upheld the terms. It said that the user had plain sight of a notice telling her where to find the terms.

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.’

2 Comments:

  • A few years ago I had to troll through dozens of DTI pages on advice to webmasters regarding opt in mail lists and such, their advice was to never pre-select a terms and conditions box though I understand numerous government websites preselect the TnC boxes, Self Assessment being one of them (according to one of my clients).

    There is also a debate underway on why the DTi don’t follow their own advice, google for Bruce Lawson for more info.

  • 5 February 2014 at 11:56Richard Beaty, 15

    I think this is 100% fair as the clients of the online services who are asked to read the terms and conditions, and also to agree to them should actually read them before they click the I agree button, binding themselves to the ‘contract’.

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