Are the terms and conditions on your website binding on users?

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The general rule is that terms and conditions are incorporated into a contract if a party has done all that is reasonable to bring the proposed terms and conditions to the attention of the other party at the time of the transaction.  How does this apply to internet transactions?

 

"Click Through" or "Browse Wrap" terms and conditions

Terms and conditions on websites can be placed so that they must be viewed by a user or they can be placed on another part of a website where they are less obtrusive and simply referred or browsed to.  These two methods of bringing terms and conditions to the attention of users are called "Click Through" and "Browse Wrap" terms and conditions respectively.

 

Applying the doctrine of precedent in the new millennium

The former situation of "Click Through" where a user must physically click through the terms and conditions that are presented to them in order to get to the next screen is analogous to the Balmain Ferry Case (1906) 4 CLR 379 where the terms and conditions were placed over the entrance to a wharf and were deemed to have been incorporated into the contract because a reasonable attempt was made to bring the them to the ticket buyers attention.  The later Browse Wrap situation is more analogous to Thornton v Shoelane Parking [1971] 2 QB 163 where the terms and conditions were on the back of the ticket and were not viewed prior to entry to the car park (but they could have been) and therefore could not be relied upon as being incorporated into the contract.

 

Lack of Australian authority

 

There is little authoritative Australian case law on point to determine whether "Browse Wrap" terms and conditions are binding on users, so cases from the US may be indicative of the way Australian Courts would consider the issue.  Note that these decisions are not binding authorities.  

 

In Register.com, Inc v Verio, Inc (unreported, US Court of Appeals, Second Circuit, 23 January 2004) it was held that contractual terms and conditions were binding where they were continually brought to the plaintiffs attention, despite there not being an option to click “I accept”.

 

This case over ruled Specht v Netscape Communications  where browsers of Netscape’s website were only informed of its terms and conditions once.  At that time, the terms and conditions had to be ‘browsed’ to by the user.  Therefore it appears likely that an Australian Court is would consider that the terms and conditions were brought to users attention if a user is forced to view them and check a box saying "I agree". 

 

Therefore, it would be prudent to ensure that website terms and conditions of use that are accessible via a link placed on the home page (or in the footer of all pages), were at some stage placed in front of a user, who is asked to click "I accept" or "I Agree".  This could be done easily on sites requiring membership, but is more difficult to achieve with sites that produce only static content.

 

Balancing useability with contractual certainty

 

Where a website owner needs to be able to rely on the terms and conditions of use of its website, prudence dictates that a user should be presented with the terms and conditions that they should scroll through and be forced to click a box saying they accept.   It is possible to do this in an unobtrusive way where users can view the terms and conditions on one page without introducing unnecessary steps.

 

In the case of websites that do not require users to register it is prudent to have the terms and conditions link visible from every page of the site in an attempt to do all that is possible to alert users to their existence along the lines of  Register.com, Inc v Verio, Inc.  Where there is an opportunity to present users with the contractual terms and conditions, it is more likely that they will be binding on the user if the user is required to click "I accept" and not other terms such as "Proceed" or "Download".

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".

 

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