15 June 2012

Click to accept

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.

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