Previously on the CogitActive Saga:
In order to fulfill the ‘explicit consent’ GDPR requirement, WordPress added a cookie consent checkbox to the comment form.
… starting from the point where the story stopped.
… and continuing with Johnstonesnow claim:
do not fall under the umbrella of privacy as covered by the GDPR.
This is considered to be implied consent and, as already explained,
Now, as alluded earlier, the
Yes, if they meet the elements that create a legally binding contract and how the terms are presented to the user for review and acceptance on the website. What are these elements?
According to them,
setting up enforceable Terms of Service requires specific placement, explanations and proper record keeping. Essentially, they stress the importance of
proper and obvious notification to users that the Terms of Service exist. Accordingly, the
legal agreements should not be buried in the website footer; this being indeed2
insufficient. Importantly, they also explain,
If the Terms of Service agreement includes a unilateral provision which states the company can change the agreement without notifying the customers, the agreement is entirely unenforceable. Good to know!
Browsewrap lacks a certain component that is essential in clickwrap: Notice.FreePrivacyPolicy
Now, it should be possible to implement
The fact that browse-wraps do not require the user to acknowledge them before using a website can however be a problem3. Asides from the lack of affirmative action, actual notice can be hard to prove. Clearly, providing evidence (i.e.
record keeping) that the user had actual knowledge of the terms is an (unsurmountable) hindrance. In that sense, it is not surprising that click-wraps are advocated as the
favored method to ensure that your legal agreements are able to be upheld in the event of a legal dispute or if other issues arise. Note, however, that click-wraps are not enforceable either if
too simple, that is without
an obvious notification that the Terms of Service exist and use of the website confirms the user agrees to these terms.
Click-wraps agreements are like gateways that stop the users from entering and using a site until they’ve acknowledged and/or accepted its terms and conditions.KJ Dearie
For e-commerce website, the easiest – and best4 – way to create a binding contract is probably to set a mandatory click-wrap during checkout so that the buyer cannot processed until he has ticked the box. A similar approach can be used for websites that require any form of registration; the click-wrap can be implemented during the sign-in. But what about websites that do not sell anything or do not have any registration?
You may be familiar with those sites that ‘welcome’ you with a pop-up window
asking forcing you to agree to their terms if you want to access their content. Granted, the pop-up meets rules for conspicuous display – in an obstructive manner, though. Personally, I hate this approach and I will not force such detestable practice on my visitors.
An hybrid solution
Admittedly, the likelihood of a court enforcing a browse-wrap is tenuous. Nevertheless, according to a study conducted by pactsafe (an esignature & clickwrap management platform),
when a user has actual notice of the agreement, courts tend to uphold browswrap agreements5. In keeping with their study, they observed that
if the user lacks actual notice of the terms, the validity of the terms then depends on whether the user had inquiry notice of the contract’s existence. Now, they also stress that
establishing such notice often requires more than just a simple implementation of a browserwrap agreement. Of course, given their business (see above) they pray to the sky click-wraps as the perfect solution. However, click-wrap agreements are not practical for information only sites, like mines!
You should ask for confirmation of acceptance of the T&C at any point where a visitor provides registration or needs to take some action.Net Lawman
To be continued…
1 In a document entitled Are Website Terms and Conditions Legally Binding?. ^
specific placement because this is a common practice in most, if not all, websites. Second, I believe the link not to be hidden from sight (i.e. buried) if the footer is not crowded with other information/links indeed. Thus, a
reasonably prudent person would be able to find it. Of course, lawsuits rule, not me! ^
3 While not a legal resource, here is what you could read in Wikipedia:
[a browse-wrap agreement] may only be enforced if the browsing user assents to it. Specifically,
for assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. ^
4 See Making your terms and conditions stick. ^
5 Gizelle Fletcher (2019) Are my browsewrap agreements enforceable? Pactafe. ^