November 12, 2009

Your Web Site Terms and Conditions May Be Unenforceable

3 min

Most websites have Terms and Conditions which govern a user’s or visitor’s rights in regard to the content of the website and/or the dealings between the parties.

Website Terms and Conditions may vary from a single page up to a twenty-page document and usually contain many important legal issues, such as limitations of liability, warranties, jurisdiction clauses, mandatory arbitration clauses, copyright and trademark resolution issues, and a host of other critical issues.  However, the fact that they are posted does not mean that they will be enforceable.

There are generally two ways that people are deemed to have acquiesced or agreed to online Terms and Conditions.  In one form of license, after the Terms and Conditions have been made available to a user, the user is presented with a button that says “I Agree” (or something comparable).  Clicking on the “I Agree” button is a prerequisite to entering the website, participating in an activity provided by the website or ordering a product.  These are called “Click Wrap Licenses,” and generally speaking they have been recognized by courts as binding agreements.

The other form of license, which is referred to as a “Browser Wrap Variety,” is one in which the Terms and Conditions are available to users if they click on a hyperlink that appears on the website. Clicking on the link is not required as a prerequisite for use of the site. The Browser Wrap Terms and Conditions usually contain some language to the effect that by using and viewing this website you agree to the Terms and Conditions. The Browser Wrap variety of license is probably the most prevalent type of online license and is the one that is least likely to be upheld by a court. Why? Because most people do not scroll to the bottom of the page to even see that there is a Terms and Conditions link, and since they are not required to click on the link to interact, most users do not view it and thus have no notice of its terms.  Also, the users are not informed in any prominent place that the Terms and Conditions are of a binding nature.

Most entities bury the Terms and Conditions, as they believe that they will interfere with the experience of the visitor, that they are intrusive or will turn off the customer/viewer.  While all of that may make sense from a marketing point of view, a Browser Wrap agreement that is based simply on a hyperlink at the bottom of the first page of a website, no matter how comprehensive, well written and germane it is, in all likelihood will not be enforced by a court.  There are a number of methods that could be undertaken by a website owner that can make Browser Wrap Terms and Conditions more likely to be enforceable.  They are relatively simple to undertake and are based on common sense. However, they require a properly designed website.  This is one instance in which, if one wants to have the benefit of their Terms and Conditions, the legal requirements must trump marketing considerations.

Joshua Kaufman is the head of the firm's Copyright and Licensing Group. For more information, please contact Mr. Kaufman at 202.344.8538 or