Are websites adequately communicating terms & conditions link in a browse-wrap agreement?

Indranath Gupta

Abstract


The recent Canadian Supreme Court decision in Century 21 said that a browse wrap agreement is enforceable once the presence of the link providing the terms and conditions (hereinafter t&c) is adequately communicated to the user of the website. In a browse wrap unlike the act of clicking in a click wrap, an agreement becomes enforceable once the user moves beyond the homepage of a website. The act of moving beyond is deemed as the acceptance of the existing t&c. Browse wrap’s enforceability thus depends on the way a website chooses to communicate the t&c link to the user. In comparison to the European courts, the American courts have mostly dealt with matters related to enforceability of browse-wrap agreement and have issued number of guidelines on adequate communication of the t&c link. Based on the guidelines issued by the American and Canadian courts, this article looks at the trend in communication practices of websites registered in Europe. In this context, the communication methods undertaken by websites are assessed from data collected in the course of an empirical survey. While concluding, this article shows that the websites in the sample do not adequately communicate the presence of the t&c link, and thereby pointing to a trend that may affect enforceability of browse-wrap agreements in European websites.

 



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