Enforcing Facebook’s Click-Through Contract

Here’s a good review of the law on shrink-wrap, click-through and ‘browse-wrap’ contracts . I expect the law of New York is much like the law in at least common law Canada on the topic. The comment is inspired by a recent dispute about Facebook’s ability to enforce its forum-selection clause. The author says that most lawyers would have thought that FB’s sign-up process was ‘bullet-proof’, but the court still made a thorough analysis of it.

The process required the person signing up to click on the terms of service to see them, In other words, the assent to those terms of service did not appear on the same page as the terms themselves. The court held that clicking a hyperlink was no harder than turning over a piece of paper to see the terms on the back. This sounds consistent with the Dell Computer case in the Supreme Court of Canada a few years ago, though in that case the question was not a choice of forum but a requirement to arbitrate rather than litigate.

(The Supreme Court of Canada renewed its generally favourable approach to forum-selection clauses this week in Momentous.ca corp v Canadian American Association of Professional Baseball Inc, though that was not an online contract.)

Can one take the ‘next step’ from saying ‘if we will enforce your clicked “OK” on a link to the terms of service, we will also enforce a ‘pure’ browsewrap ‘agreement’ in which your assent is shown by mere use of the site in the face of the terms of service?’

Have Canadian courts enforced a ‘terms of service are binding on you for mere use of site’ provision on anyone who was not trying to steal the information found on the site (as in the Sutton Realty case or the recent BC real estate listings case)?

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