Implementing and Enforcing Online Terms of Use -

Operators of social media platforms and other Web sites must manage a large number of risks resulting from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks, Web site operators routinely present users with terms of use or terms of service (Website Terms) that purport to govern access to and use of the relevant Web site and include provisions designed to protect the Web site operators, such as disclaimers, limitations of liability and favorable dispute resolution provisions. But are such Website Terms enforceable against users and do they actually provide the protection that Web site operators seek? The answer may well depend on how the Website Terms are implemented.

Clickwrap versus Browsewrap -

Website Terms typically come in two flavors: (1) “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the Web site, and (2) “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.

Originally published in The Licensing Journal, Vol. 34, No. 10, Pg 29–31 on December 22, 2014.