Clickwrap, Browsewrap, and Scrollwrap: Which Consent Method is Legally Sound?

If you provide software, services, or products online, you'll likely need to use an electronic consent method to get users to agree to your terms.

If your website collects user data or requires agreement to terms, the way you capture user consent could make or break your legal protection. This article breaks down the three main methods (clickwrap, browsewrap and scrollwrap) and which courts are most likely to enforce.

What Are Clickwrap, Browsewrap, and Scrollwrap Consent Methods?

Clickwrap, browsewrap, and scrollwrap consent methods are used to get user agreement to important legal documents, including Terms and Conditions agreements and Privacy Policies.

A Terms and Conditions agreement (also referred to as Terms of Service or Terms of Use) lists the rules users must follow in order to use a company's product, services, website, or app, while a Privacy Policy outlines a company's privacy practices and explains how users can exercise their privacy rights.

The UPS Website Terms of Use agreement includes sections about the scope of its Terms of Use, restricted uses of its website, and limitation of liability, among other clauses.

The UPS Privacy Notice includes clauses about the information it collects and shares and how it keeps personal information safe.

When Are Consent Methods Enforceable?

Online agreements can be legally binding as long as certain conditions are met.

Courts are most likely to uphold electronic agreements as valid and enforceable when they meet the following criteria.

The terms are clearly presented

The terms should be written in easy-to-understand language and avoid legal jargon.

For example, terms that are presented through a statement such as "By clicking the 'I Agree' button, you agree to the Terms and Conditions" that includes a hyperlink to the Terms and Conditions agreement communicates that the user needs to consent to the terms in order to use the service.

The UPS account sign-up page clearly communicates that users need to agree to its linked UPS Tariff/Terms and Conditions of Service agreement and UPS Technology Agreement and includes a checkbox that users must tick to indicate their consent.

The user must take action to indicate their consent to the terms

Your consent method should require users to take affirmative action to convey their consent, such as by ticking a checkbox that says "I agree." Avoid using pre-checked boxes, as they do not give users the opportunity to actively consent to your terms.

When users sign up for a Chase credit card they must tick a checkbox indicating that they agree to its terms.

The terms are conspicuously located and easily accessible

Follow these tips to ensure your terms are easy to find and read:

• Prioritize visibility by choosing prominent placement and a legible font for your terms.
• Ensure the link to your terms is clickable.
• Make sure the link to your terms enables users to open and read the full legal agreement on both desktop and mobile devices.

GoNoodle clearly displays links to its terms within its account sign-up page and uses checkboxes to ensure users can actively consent to the terms.

Why Do You Need to Use an Online Consent Method?

Using an online consent method to get consent to your legal agreements can:

• Make your legal agreements enforceable. Online consent methods can help create a valid, enforceable contract between you and your users, helping to ensure that your Terms and Conditions agreement and Privacy Policy are legally binding.
• Support compliance with privacy laws. Many state and global privacy laws require businesses to get consent from users before collecting or processing (using) their personal information. An online consent method can function as a way to collect and record consent, helping business owners comply with applicable privacy laws.
• Build trust with your audience. In addition to helping you establish a valid contract and comply with applicable laws, online consent methods can also help build trust with your users by providing easy access to your terms and promoting transparency.

Article 7 of the European Union's (EU) primary privacy law, the General Data Protection Regulation (GDPR), explains that where data processing is based on consent, the data controller (the person who makes decisions about how and why to process data) must be able to prove that the data subject (the individual to whom personal data belongs) consented to the processing.

What Are the Differences Between Clickwrap, Browsewrap, and Scrollwrap Agreements?

Here's a quick comparison between these 3 consent methods:

Let's take a look at the differences between each kind of electronic consent method and which ones hold up better in court.

Clickwrap

A clickwrap agreement is a contract that users can read online and then agree to, typically by clicking on a clearly labeled checkbox or button.

Clickwrap agreements are one of the most enforceable of the three consent methods, as they clearly present and require users to actively consent to the terms.

For example, in the case Feldman v. Google, Inc., the plaintiff, Lawrence Feldman, argued that he wasn't made aware of Google's terms when he signed up for the company's advertising services. However, the court ended up siding with Google, concluding that Feldman had been given a reasonable opportunity to review and accept Google's terms and that he had signified his consent to the terms by clicking on Google's online agreement.

This case showed that clickwrap agreements are enforceable even when the entirety of the terms can only be accessed by clicking on a hyperlink.

Users signing up with HealthCare.gov are presented with a statement that they agree to its Terms and Conditions agreement and Privacy Policy next to a checkbox they must tick before creating an account.

Scrollwrap

A scrollwrap agreement requires users to scroll to the bottom of the company's terms before indicating their consent by clicking on a button.

Scrollwrap agreements are considered enforceable as long as they are clearly presented and the user is required to take action to communicate their consent, but they are less common than clickwrap agreements.

In the case of Good vs. Uber, the definition of a scrollwrap agreement is: "scrollwrap requires users to physically scroll through an internet agreement before clicking on a separate 'I agree' button in order to assent to the terms and conditions of the host website."

The case of Berroa v. Nasimov is an example of how scrollwrap agreements can hold up in court. Franklin Berroa was a passenger in Lyft driver Ravshan I. Nasimov's vehicle when an accident occurred. Berroa later brought claims against Nasimov and sued Lyft for vicarious liability.

However, the court determined that Berroa had agreed to Lyft's scrollwrapped Terms of Service agreement-including its arbitration clause-and his claims against Lyft were moved to arbitration.

Browsewrap

With a browsewrap agreement, the online terms are provided (such as through an inconspicuous link) but it doesn't require the user to take any specific action to convey their consent.

Courts don't typically view browsewrap agreements as legally binding contracts as the user isn't required to take action to communicate their consent to the terms, and there is no way to prove that they were given a reasonable opportunity to read them.

For instance, in January 2012, Zappos announced a data breach that resulted in a class action lawsuit against the company. Zappos tried to keep the case out of court by sending it to arbitration, saying that its users had agreed to its terms under its browsewrap agreement. However, users could only access Zappos' terms by scrolling to and clicking on a hyperlink at the bottom of its home page and didn't have to take any action to communicate their agreement to its terms.

The federal judge rejected Zappos' arbitration claim, stating "A party cannot assent to terms of which it has no knowledge or constructive notice, and a highly inconspicuous hyperlink buried among a sea of links does not provide such notice. Because Plaintiffs did not assent to the terms, no contract exists, and they cannot be compelled to arbitrate."

The outcome of this case demonstrates the need for companies to maintain accessible legal agreements and enforceable consent methods, such as clickwrap or scrollwrap agreements.

That being said, in some situations, browsewrap agreements may be enforceable if it can be shown that the user had actual knowledge of the terms.

Here's an example of what a browsewrap agreement can look like.

The U.S. News account sign-up page includes the statement that "By continuing, you are agreeing to our Terms and Conditions & Privacy Policy" with hyperlinks to its legal agreements.

Summary

Clickwrap, browsewrap, and scrollwrap agreements are all online methods that can be used to get user consent to legal agreements.

Maintaining an enforceable consent method is important because it can provide legal protection, help you comply with privacy laws, and help build trust with your users.

Clickwrap agreements require users to take action-such as clicking on an "I agree" button located next to a statement that contains a link to the terms-to indicate their agreement to the terms.

Scrollwrap agreements present the entirety of the terms within a box that users must scroll through before clicking on a button to indicate their consent.

With browsewrap agreements, the terms are available through a hyperlink-often placed in the website footer-and agreement to the terms is assumed based on the use of the site.

Clickwrap agreements can be legally binding as they clearly present the terms, require affirmative action on the part of the user to convey their consent, and record the user's consent. Feldman v. Google, Inc is an example of a case where a clickwrap agreement was deemed enforceable.

Scrollwrap agreements can also be considered enforceable, but many business owners prefer the simplicity and user-friendly structure of clickwrap agreements. In Berroa v. Nasimov, the court determined that Lyft's scrollwrap agreement was enforceable, and compelled the case to arbitration.

Browsewrap agreements are not typically legally binding unless there is evidence that the user had actual knowledge of the terms. A federal judge ruled in a Zappos data breach case that the company's browsewrap agreement was unenforceable.