Out-Law / Your Daily Need-To-Know

Website terms incorporated by 'continue' button, rules US court

Out-Law News | 12 Sep 2007 | 8:08 pm | 3 min. read

A US Court of Appeal has said that a website can incorporate terms into a contract with a link above a 'continue' button that is part of a registration form. The approach is not recommended for sites in the UK, an e-commerce lawyer warned.

A user of dating website True.com is suing the owners of the site alleging that its offer of free membership to women but not men amounts to gender discrimination. As part of the case the man, Michael Cohn, argues that he had not agreed to terms and conditions when he clicked 'Continue' on the website's registration form when signing up for a free trial.

True.com's registration form asks for a user's date of birth, screen name, password and email address. A statement follows the last field in the form: "I am at least 18 years old, and I have read and agree to the TRUE Terms of Use and Code of Ethics." Beneath that statement was a single button marked 'Continue'.

Screenshot of the foot of True.com's registration page

Screenshot showing the foot of the first registration page at True.com

The website owner, TrueBeginnings LLC, claimed that clicking on the 'Continue' button represented Cohn's acceptance of the site's terms and conditions.

Cohn said that he had not been forced to read terms and conditions and had not explicitly agreed to abide by them.

“The True.com web site did not require me to link to, review, or agree to any Terms of Use in order for me to register for my free trial membership; therefore, I did not link to, review, or agree to any Terms of Use in registering for my free trial membership," he said in his evidence in the case.

"I did not have to click on any ‘I agree’ icon or button to register for my trial membership. Nor did I agree to any Terms of Use that included a choice of law clause or a forum selection clause," he said.

The issue was important in the case because Cohn wanted it heard in California. The Terms of Use stipulated that any dispute be heard in Texas. The Superior Court of Los Angeles County had sided with True.com and dismissed the case in California. Cohn appealed.

The Californian Court of Appeal said that there was no reason why Cohn should not have been considered to have entered into an agreement with True.com. That was also the decision to which the first court had come.

"Under these circumstances, where appellant obviously had access to the internet and was entering into a contract on the internet, there was nothing inherently unfair in requiring him to access contractual terms via hyperlink, which is a common practice in internet businesses," it said. "The trial court did not abuse its discretion in finding that appellant agreed to the forum selection clause contained in the Terms of Use."

The ruling is contrasted with other US decisions on 'Agree' buttons in BNA's TechLaw blog

BNA Managing Editor Thomas O'Toole concludes: "I guess it doesn't matter what the button says, so long as the user is on notice that clicking the button indicates agreement to a contract that has been mentioned – but not necessarily displayed – prior to presentation of the button."

"It's nice to use an 'I agree' button," he adds, "but you don't have to."

Struan Robertson, a technology lawyer with Pinsent Masons and editor of OUT-LAW.COM, said that websites contracting with customers in the UK should not follow the example of True.com.

"We always recommend a check box as an absolute minimum," said Robertson. "If you want to be sure that your customers are signed up to your terms, don't make them an optional link that's easily missed."

"Website users typically do whatever is required to achieve a goal. If the goal is signing up to a site, they'll complete compulsory fields and hit the continue button. They won't read all the text on the screen or examine all the links and there's a good chance that a court in the UK will recognise that," he said.

"The solution is to use a compulsory check box. Put that next to a line that says 'I agree to the terms and conditions' and make the words 'terms and conditions' a clear link. That's the only safe way, unless you display the conditions in full as a compulsory part of the sign-up process."

"You can't force people to read your small print – most people don't bother – but you can maximise the opportunity, and that will protect you in a dispute," he added.

Robertson said that check boxes should not be pre-ticked, and that a website operator must be careful not to put words into a users's mouth. "Don't use the words 'I have read, understand and accept the terms and conditions' with a button, because in the opinion of the Office of Fair Trading, you are then encouraging users to make undertakings that could be untrue, since users can check the box without really reading the conditions. Instead, the OFT recommends the warning notice that encourages the user to read the conditions," he said.

The ruling in the Cohn case will not alter UK law and may not even affect the way other US courts decide such issues, though it could influence how stringently web publishers apply guidance.

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