Websites and internet service providers should consider inserting as many positive steps as possible to ensure that the user is aware it is bound by terms of use or terms of service to ensure the enforceability of those terms. This is something that can be addressed in the registration process.
A recent case in the US discussed the difference between ”clickwrap” and ”browsewrap” agreements. A clickwrap requires a positive action on the part of the user, but a browsewrap does not (usually just a link to the terms of service of the website). In this case, the user was successful in arguing that they weren’t subject to the terms of use of a website that had a browsewrap agreement.
Take away:
- The drafter of a “browsewrap” terms of use (where only a link is provided to the terms of use) will wish to ensure that the user is completely aware that it exists, as it may be unenforceable if it is too hidden.