Hey there! As an avid internet user, have you ever actually read those lengthy terms of use agreements on the websites you visit? If you‘re like most people, probably not very thoroughly – if at all. But should you take website terms more seriously? Can they actually be enforced if you violate them? I‘ve dealt with this question a lot in my work as a web scraping and proxy expert. So let‘s dig into the tricky legal status of website terms of use and see if they hold up in court.
We encounter website terms of use, also called terms of service or TOS, on almost every site these days. When you sign up for an account, make an online purchase, or browse content, there‘s a good chance you‘re agreeing to some fine print terms in the process.
Website owners put terms in place to regulate acceptable uses of their platform and limit legal liability. The growth of e-commerce and user generated content has made terms of use ubiquitous – Amazon‘s terms are over 19,000 words! But are these detailed rules actually intended to be followed and enforced?
Many users assume terms exist just as superficial legal protection that won‘t impact them. But violations can carry consequences if a company decides to pursue enforcement. Last year, 2,320 lawsuits were filed in the U.S. alone related to disputes over online terms. [1]
High profile cases like LinkedIn suing scrapers have brought terms of use into the spotlight. [2] While sites may not police every infraction, wise users should understand their obligations under terms they unwittingly accept.
Terms and conditions establish a legally binding contract between the user and website owner. They typically contain provisions addressing:
Acceptable uses – Permitted vs. prohibited user activities like scraping data or using bots.
User content rules – Governance of posting content and licensing copyrights to the site.
Code of conduct – Behavioral restrictions and community guidelines.
Privacy policy – Collection, usage and protection of user data.
Disclaimers – Limitations of liability and disavowing warranties.
Account termination – Rights of the site to delete accounts for violations.
Amazon‘s terms devote over 2,800 words just to intellectual property provisions! The level of detail highlights how much risk websites face by hosting user content and interactions. Terms provide recourse if users violate rules or laws using the platform.
Now we get to the crux of the matter – just because terms exist doesn‘t mean they are necessarily enforceable. Online terms must meet certain legal standards to be binding contracts that a court will uphold. There are a few important factors at play:
Adequate notice
Users must know terms apply and have a reasonable chance to review them in advance. Terms won‘t be enforced if notice was insufficient.
Affirmative assent
Users must actively or passively demonstrate agreement – usually by clicking "I accept" or creating an account.
Consideration
Each party must exchange something of value – access to the site for users, rights to data/content for the site owner.
Additionally, the process for securing user consent and the terms themselves must pass scrutiny to be valid and enforceable contracts. Different categories of terms have varying legal standing based on these requirements.
There are four general classifications of website agreements, ranked from least to most enforceable:
Non-binding browsewrap terms
Terms posted via link, usually at bottom of homepage
No action required to agree
Browsewrap terms rely on mere use of the site as acceptance of the conditions. Users don‘t actively sign or click to consent. Given the lack of affirmation, browsewrap terms are only enforceable under very specific circumstances.
Courts have required "robust notice" – like putting the terms directly on the homepage where users will definitely see them. [3] Without blatantly obvious notice, browsewrap terms face uphill battles for enforcement.
Often enforceable clickwrap terms
User clicks box to agree to terms
Typically hyperlinked text available before acceptance
Clickwrap terms are generally upheld because they provide unambiguous consent. Requiring users to click "I agree" leaves little question they accepted the contract.
But placement matters – clickwrap terms buried under other text or buttons face challenges. Notice and aware assent must be crystal clear, according to the 9th Circuit appeals court. [4]
Highly enforceable scrollwrap terms
User must scroll through terms before assenting
Full text visible on screen during process
Scrollwrap agreements take clickwrap a step further – users must actually scroll through the terms before getting the option to agree. This added friction makes ignorance of the terms difficult to claim and scrollwrap very enforceable.
For example, Facebook‘s terms were found binding because new users had to scroll through the text before joining the social network. [5]
Mixed bag sign-in wrap terms
Acceptance bundled into signup/login process
Consent inherent in account creation
Sign-in wrap couples agreeing to terms with the act of creating an account. Since consent is tied to registration, enforceability depends on how noticeable the terms are in the sign-up flow.
Placement on the page and interface design are key factors courts examine to determine valid notice and assent. [6]
So in summary, the more actions required of users to demonstrate awareness and agreement to terms, the more likely courts will uphold them as binding contracts.
While the categories above provide general guidance, enforceability is assessed on a case-by-case basis. Court decisions often come down to the specific facts around notice and assent.
Even if terms are deemed a valid contract, judges may sometimes rule certain overreaching provisions unenforceable. This occurs when terms are found excessively one-sided, oppressive or unreasonable towards weaker parties like individual users. [7]
Let‘s look at some real world examples of online terms that were upheld and struck down in court:
Enforceable terms
StubHub‘s browsewrap terms requiring agreement before ticket purchases were enforced after placing notice directly on their homepage. [8]
eBay‘s clickwrap terms mandating arbitration were binding because the "I agree" checkbox was presented next to a hyperlink to the terms. [9]
Facebook‘s scrollwrap terms shown during registration were deemed enforceable because new users had to scroll through the text before joining. [5]
Unenforceable terms
Barnes & Noble‘s browsewrap terms buried at the bottom of pages were unenforceable due to lack of notice according to the court. [10]
TransUnion‘s clickwrap terms were struck down when the court ruled the acceptance button placement was unclear and inconspicuous. [11]
Facebook‘s sign-in wrap terms failed on the notice requirement according to one court ruling. [12]
Crafting binding terms requires care and thoughtful design. Here are my top tips as an industry expert if you want reassurance your terms will be judicially enforced:
Place terms prominently on high-traffic pages – prime real estate like the header or homepage is ideal.
Use clear links labeled "Terms of Use" or "Terms & Conditions" – icons or ambiguous links like "Legal" are risky.
Require obvious action to accept terms – clickwrap checkboxes or scrollwrap screens are recommended.
Make notice unavoidable before registration and purchases – don‘t allow bypassing terms.
Keep language simple, legible and easy to digest – dense small print could undermine notice.
Spot check user flow regularly – fix issues with buttons, hyperlinks or text blocking.
Consider both desktop and mobile interfaces – placement and UX should work across devices.
Include version dates and change highlights to re-secure consent from returning users.
Of course, even ironclad terms can‘t guarantee compliance or prevent all disputes. Alternative resolution methods like mandatory arbitration clauses are increasingly used to manage conflicts outside costly litigation. But thoughtfully implemented terms certainly offer more legal protection if users disregard rules or misuse your platform.
At the end of the day, users shouldn‘t assume terms of use are toothless or non-binding simply because they are routine and often ignored. While not every website‘s terms are rigorously enforced or legally solid, many are deemed valid contracts that carry weight in court.
If informed of violations, website owners can pursue enforcement through court orders, injunctions, fines and damages. So I advise all users to take a few minutes to review and understand the terms of any new site or service. Skimming key sections can help you avoid problematic activities that cross lines drawn in that fine print.
With websites and internet use only growing, terms of use aren‘t going away anytime soon. I hope this breakdown of how they are viewed and enforced under contract law gives you useful context the next time you encounter those screens full of legalese! Let me know if you have any other questions.
