Browsewrap vs. Clickwrap: Protecting Your Website or App

notebook-405755_960_720

Browsewrap and clickwrap. We may have just introduced you to two new words. Browsewrap and clickwrap are the two methods websites and apps can utilize to have their users agree to their Terms of Service or other agreement. If you’re creating a website or mobile application, this post should be mandatory reading.

What is browsewrap?

If your Terms of Service are simply posted as a hyperlink somewhere on your website or mobile application, your contract is a browsewrap contract. Courts — not typically known for their creativity — have created this term because they likened the agreements to digital versions of “shrinkwrap agreements.” Shrinkwrap agreements are contracts found under the shrinkwrap of an item a consumer purchases, typically a computer or other large good. In other words, you can’t read the contract until after you’ve purchased the goods. In a browsewrap agreement, you can’t read the contract until after you’ve visited and accessed the site.

There’s another issue with browsewrap contracts. Some courts have become concerned that users are not given enough notice of the existence of the Terms of Service (or whatever other agreement you’re using) if it’s simply available through a link. In 2014, the United States Court of Appeals for the Ninth Circuit held that an arbitration clause found in the Terms of Service on Barnes & Noble’s website was unenforceable because the website’s link to the Terms of Service was insufficient to give the user notice of the contract. See Nguyen v. Barnes & Noble, Inc., 763 F. 3d 1171 (9th Cir. 2014). The Ninth Circuit reiterated that “[t]he defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists.”

It should be noted that not all courts have declined to enforce browsewrap agreements. In fact, some state courts have found the agreements to be acceptable in certain cases. Finally, it’s difficult to paint all browsewrap agreements with the same broad brush. An agreement that is simply available through a small link may give less notice to users than an agreement that is referenced throughout the site.

What is clickwrap?

Clickwrap broadly refers to internet agreements that are accepted by users through action. For example, a website or mobile application that requires users to click “I Accept the Terms of Service”  would be considered clickwrap. Generally speaking, clickwrap agreements are more enforceable than browsewrap agreements (assuming the actual content of the contract is enforceable).

Conclusion

Browsewrap is easy and convenient. However, some courts have cast considerable doubt on the enforceability of browsewrap agreements. If possible, you should implement a clickwrap solution for your online agreements. Keep in mind that the touchstone is notice of the contract. Users should be made well aware that they are agreeing your Terms of Service or other agreements. Please note that every website and application is different. You should speak with an experienced business attorney before implementing any online agreement.