Are website conditions of use binding?
Many websites
have conditions of use, supposedly binding the visitor to various conditions.
Usually they are of minor importance, but if they are contractually binding,
there is no theoretical limit on the obligations that could be imposed. But is
there a contract with the visitor?
Probably
not, and a recent case[1]
strengthens that view, holding there was no consideration even for an online
acceptance click. To form a contract there would have to be offer and acceptance,
consideration and contractual intention. None of these is likely to be present
just in visiting a website.
The case went
further. It held that there was no contract even when the consumer set up an
account, registered user details and clicked to accept the terms and
conditions. The court said there was still no consideration for the obligations
of the consumer: the website owner was not obliged to provide him with any
service, and could take down the website at any time. A contract only came into
being when an actual order was placed.
That is a
surprising conclusion, given the minimal requirements to give adequate
consideration, so the case may not be reliable as a precedent in other cases.
Including some trivial obligation on the part of the website operator could get
round the point.
Less
surprisingly, the case also says that attempting to make a consumer responsible
for all unauthorised use of his account is unfair and unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 – see my previous post on that subject,
On
Level Terms.
