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Internet law is an area of continued and intense debate. Courts are constantly confronted with legal situations unimaginable to those who wrote the laws many years ago. Quite a few cases are decided, overturned on appeal, then overturned again upon further appeal.
In some cases, large governmental bodies, such as the European Union, have taken far-reaching steps by passing new legislation designed to protect both consumers and companies in an ever-connected online world. Laws such as the General Data Protection Regulation (GDPR) are the reason you now have to agree to cookies for each and every website you visit.
The need for small business Terms and Conditions templates has skyrocketed since this legislation was passed. No one wants to find themselves on the wrong side of the law–that’s why templates from The Contract Shop are a fantastic solution for any website owner.
The modern concept of online Terms and Conditions got its start in the mid-1990s with certain kinds of software, such as CD-ROMs. On the outside of a box’s shrinkwrap, some companies placed a notice that opening the box constituted agreeing to Terms and Conditions–this was called a “shrinkwrap contract.”
Next came the clickable, or “clickwrap,” agreement. It was deemed too onerous to attempt to get each and every software user to sign a contract on paper, so these companies decided to inform the user when the software was installed, allowing users the option of stopping or moving forward by simply clicking an “I Agree” button. This became known as a “clickwrap contract.”
After these Terms and Conditions were upheld as valid contracts, websites soon began to use them as a way to shield themselves from users seeking to abuse websites or use them in ways the creators did not intend. Website Terms and Conditions are binding, like any other contract.
A landmark case involving Ticketmaster in 2000 challenged where Terms and Conditions could reasonably be placed on a website. Ticketmaster posted text at the bottom of its webpage saying, essentially, “If you use this website, it counts as agreeing to our terms.” The courts ruled that this was insufficient, as a user needed to have the ability to agree, or the Terms and Conditions had to be more conspicuous.
The type of Terms and Conditions on Ticketmaster’s website are known as “browsewrap contracts,” and many websites still use them. Browsewrap agreements carry far less legal weight than clickwraps, as clickwraps require acknowledgment and consent.
For the reasons above, it’s an excellent idea to have the Terms and Conditions for your website in a very easy-to-find location. This provides a legal argument that you made an honest effort by placing Terms and Conditions on the front page of your website.
If possible, having the user agree to the Terms and Conditions before accessing your site is usually preferable. Some websites may only do this if the user chooses to create an account. Once a user creates an account, not having them sign Terms and Conditions sets a terrible precedent–not only will the user not understand what they are and are not allowed to do, but neither will you.
At the end of the day, for a casual browser of your website who doesn’t have an account, having the Terms and Conditions easily locatable is necessary. If they will be creating an account, having them click “I Agree” is your safest bet.
In both cases, creating a clickable “I Agree” statement before a user accesses your website offers more protection–although this may make some casual internet browsers turn away, so use it prudently.
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