Browsewrap is a method used by websites to obtain agreement to their terms and conditions without requiring users to expressly agree to them.
Instead, the terms are made available via a hyperlink, often located at the bottom of the webpage, with the understanding that by merely using the site, users consent to these terms.
This approach assumes that your use of the website implies acceptance of its terms, even if you haven’t actively clicked an I agree button or checkbox.
For example, when you visit a shopping website, you might see a notice stating that by continuing to use the site, you agree to the site’s privacy policy and terms of service, which are accessible through a link.
Unlike clickwrap agreements, where explicit consent is obtained through affirmative action (like checking a box or clicking a button), browsewrap agreements do not require such explicit actions.
The enforceability of browsewrap agreements can be challenging, as courts often look for evidence that users had actual or constructive notice of the terms.
If the link to the terms is hidden or not easily noticeable, users might not be considered bound by them.
To increase the likelihood of enforceability, websites should ensure that their terms are prominently displayed and that users have a reasonable opportunity to review them.
Critics of browsewrap argue that it does not provide a clear consent mechanism, potentially leaving users unaware of the terms to which they are agreeing.
As a result, some jurisdictions and legal systems may place limitations on the enforceability of browsewrap agreements, emphasizing the importance of making terms and conditions conspicuous and ensuring users have a fair chance to review them.
In practice, incorporating elements of both browsewrap and clickwrap, such as presenting terms and conditions in a noticeable manner and requiring some form of acknowledgment, can help strengthen the argument that users have agreed to the terms.
This hybrid approach aims to balance user convenience with legal clarity, ensuring that agreements are both accessible and enforceable.
