Browsewraps – Why Bother?
Here’s a comment by Eric Goldman of Santa Clara law school on a California court of appeals case, refusing to validate an arbitration clause in a ‘browsewrap’ format – i.e. a link to ‘terms of use’ with no requirement of the contracting party to acknowledge them.
Are such clauses enforced in Canada, except to prevent obvious dishonest behaviour as in Sutton Realty in Quebec or the similar BC case, Century 21 v Rogers Communications, about scraping real estate listings off an MLS site? (See par 92ff of that decision). Why should they be?
The ULCC published a study of them back in 1998 – I doubt they’re more sound now than they were then.
Do lawyers advise their clients to try this method of binding their customers, or do the salespeople override the legal advice?
IMHO, whether browse wraps are enforced depends on the issue at hand, how it was presented on the web page, and how much a court wants to ignore it.
So if a click-wrap isn’t merited, then the only other real choice is a browsewrap. So the advice to clients is that it may or may not be enforceable, but since it might be, and since even if it is not it gives you an arguable position, its worth putting it there.
That’s assuming of course that the site is more than just a simple brochure site with basic information that doesn’t really require any terms.
I always thought the idea of browsewraps were conceptually problematic. Often the focus of the legal analysis is on offer/acceptance with browsewraps – i.e., did the user have reasonable notice of and acquiesce to the terms. That is often an issue, but I would argue that apart from that there is a consideration problem. When your website is open to the world on the web and you don’t place restrictions on people’s ability to access and use it via some sort of technological means (e.g., a paywall), what has the user been provided in terms of consideration? It’s not the ability to access and use your website, because it was always publicly available and will continue to be whether they agree with your browsewrap or not.
In my mind decisions like Sutton Realty or Century 21 were wrongly decided – Canada does not have data protection provisions under its IP laws so if they did not want people scrapping their website data, the answer is to require user registration with a clickwrap.
Dear Sir
The question is naive even if nonenforcement of such terms is in fact much more predictable -to an informed person- than Mr Canton says.
It still will not be so to all, or probably to most, persons, with whom the site owner has disputes or from whom they want to collect money or other consideration.
Yuors Sincerely