Browse wrap
Encyclopedia
Browse-wrap is a term used in Internet law to refer to a contract
or license agreement covering access to or use of materials on a web site. Specifically, a browse-wrap license is expected or assumed to have been agreed to before a user browses the website. It is similar to a clickwrap
license, but specific to web browsing; both names come by analogy to shrink-wrap licenses. A small number of legal case
s have been brought to determine whether browse-wrap licenses are enforceable, and at which point a user's acceptance of license terms can be established.
website. Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". Only if a user scrolled down the page to the next screen did he come upon an invitation to review the full terms of the program's license agreement, available by hyperlink
. The plaintiffs, who had not seen the agreement, downloaded the software and then were later sued for violations of federal privacy and computer fraud statutes arising from the use of the software. The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Because the plaintiffs were not put on notice of these terms they were not bound by them.
In Ticketmaster Corp. v. Tickets.com, Inc., the court looked at a breach of contract
claim where the terms and conditions were situated at the bottom of the home page in "small print
." The court ruled for the defendant in this case but did allow Ticketmaster to replead if there were facts showing that the defendant had knowledge of the terms and implicitly agreed to them.
In 2005, the Illinois Appellate Court
ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell
products were exposed to a conspicuous hyperlink over a series of pages. The court found that this repeated exposure, and visual effect would put the reasonable person on notice of the "terms and conditions".
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
or license agreement covering access to or use of materials on a web site. Specifically, a browse-wrap license is expected or assumed to have been agreed to before a user browses the website. It is similar to a clickwrap
Clickwrap
A clickwrap agreement is a common type of agreement often used in connection with software licenses. Such forms of agreement are mostly found on the Internet, as part of the installation process of many software packages, or in other circumstances where agreement is sought using electronic media...
license, but specific to web browsing; both names come by analogy to shrink-wrap licenses. A small number of legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
s have been brought to determine whether browse-wrap licenses are enforceable, and at which point a user's acceptance of license terms can be established.
Case law
In Specht v. Netscape, the court looked at the enforceability of a browse-wrap contract entered into on the NetscapeNetscape
Netscape Communications is a US computer services company, best known for Netscape Navigator, its web browser. When it was an independent company, its headquarters were in Mountain View, California...
website. Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". Only if a user scrolled down the page to the next screen did he come upon an invitation to review the full terms of the program's license agreement, available by hyperlink
Hyperlink
In computing, a hyperlink is a reference to data that the reader can directly follow, or that is followed automatically. A hyperlink points to a whole document or to a specific element within a document. Hypertext is text with hyperlinks...
. The plaintiffs, who had not seen the agreement, downloaded the software and then were later sued for violations of federal privacy and computer fraud statutes arising from the use of the software. The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Because the plaintiffs were not put on notice of these terms they were not bound by them.
In Ticketmaster Corp. v. Tickets.com, Inc., the court looked at a breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
claim where the terms and conditions were situated at the bottom of the home page in "small print
Small Print
Small Print is the debut album by English singer Sam Wedgwood, released in 2006. The album was mastered at Little Tardis Studios and clearly illustrates Sam’s varied, extensive musical tastes and influences, combining a modern acoustic vibe with some funky jazz beats, some dance numbers and real...
." The court ruled for the defendant in this case but did allow Ticketmaster to replead if there were facts showing that the defendant had knowledge of the terms and implicitly agreed to them.
In 2005, the Illinois Appellate Court
Illinois Appellate Court
The Illinois Appellate Court is the court of first appeal for civil and criminal cases arising in the Illinois Circuit Courts. Three Illinois Appellate Court judges hear each case and the concurrence of two is necessary to render a decision. The Illinois Appellate Court will render its opinion in...
ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell
Dell
Dell, Inc. is an American multinational information technology corporation based in 1 Dell Way, Round Rock, Texas, United States, that develops, sells and supports computers and related products and services. Bearing the name of its founder, Michael Dell, the company is one of the largest...
products were exposed to a conspicuous hyperlink over a series of pages. The court found that this repeated exposure, and visual effect would put the reasonable person on notice of the "terms and conditions".
Summary
A browse-wrap agreement can be formed by use of a web page or a hyperlink or small disclaimer on the page. It may only be enforced if the browsing user assents to it. For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no "bright-line" rules on whether a given agreement is sufficiently conspicuous. However, based on Specht, some practitioners believe
that the icon for the terms of use agreement be placed in the upper left-hand quadrant of the homepage and that all visitors be channeled through the homepage. The reason for this suggestion is that the court will take judicial notice of the fact that all Internet pages open from the upper left-hand quadrant, thus the defendant must overcome the presumption that the icon was viewed. Without this presumption, the plaintiff has the burden of proving the defendant did see the icon.
See also
- Electronic signatureElectronic signatureAn electronic signature, or e-signature, is any electronic means that indicates either that a person adopts the contents of an electronic message, or more broadly that the person who claims to have written a message is the one who wrote it . By comparison, a signature is a stylized script...
- Electronic Signatures in Global and National Commerce ActElectronic Signatures in Global and National Commerce ActThe Electronic Signatures in Global and National Commerce Act is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and electronic signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into...
(ESIGN)