A clickwrap or clickthrough

agreement Agreement may refer to: Agreements between people and organizations * Gentlemen's agreement, not enforceable by law * Trade agreement, between countries * Consensus, a decision-making process * Contract, enforceable in a court of law ** Meeting ...

is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy.

Privacy policies A privacy policy is a statement or legal document (in privacy law) that discloses some or all of the ways a party gathers, uses, discloses, and manages a customer or client's data. Personal information can be anything that can be used to identify ...

, terms of service and other user policies, as well as

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...

policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for

social media Social media are interactive media technologies that facilitate the creation and sharing of information, ideas, interests, and other forms of expression through virtual communities and networks. While challenges to the definition of ''social me ...

services like

Facebook Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dust ...

Twitter Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...

Tumblr Tumblr (stylized as tumblr; pronounced "tumbler") is an American microblogging and social networking website founded by David Karp in 2007 and currently owned by Automattic. The service allows users to post multimedia and other content to ...

, connections to wireless networks operated in corporate spaces, as part of the installation processes of many software packages, and in other circumstances where agreement is sought using digital media. The name "clickwrap" is derived from the use of "

shrink wrap contracts Shrinkwrap contracts or shrinkwrap licenses are boilerplate contracts packaged with products; usage of the product is deemed acceptance of the contract. Web-wrap, click-wrap and browse-wrap are related terms which refer to license agreements in ...

" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within". The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the

end-user In product development, an end user (sometimes end-user) is a person who ultimately uses or is intended to ultimately use a product. The end user stands in contrast to users who support or maintain the product, such as sysops, system administrato ...

to manifest their assent by clicking an "ok" or "agree"

button A button is a fastener that joins two pieces of fabric together by slipping through a loop or by sliding through a buttonhole. In modern clothing and fashion design, buttons are commonly made of plastic but also may be made of metal, wood, o ...

on a

dialog box The dialog box (also called dialogue box (non-U.S. English), message box or simply dialog) is a graphical control element in the form of a small window that communicates information to the user and prompts them for a response. Dialog boxes ar ...

or pop-up window. A user indicates rejection by clicking cancel or closing the window. If the user opts to reject the terms, they cannot use or purchase the product or service. Classically, such a take-it-or-leave-it contract is described as a "

contract of adhesion A standard form contract (sometimes referred to as a ''contract of adhesion,'' a ''leonine contract'', a ''take-it-or-leave-it contract'', or a '' boilerplate contract'') is a contract between two parties, where the terms and conditions of the co ...

, which is a contract that lacks bargaining power, forcing one party to be favored over the other." The terms of service or license do not always appear on the same webpage or window, but are always accessible before acceptance, such as through a

hyperlink In computing, a hyperlink, or simply a link, is a digital reference to data that the user can follow or be guided by clicking or tapping. A hyperlink points to a whole document or to a specific element within a document. Hypertext is text w ...

embedded in the product's webpage or a pop-up screen prior to installation. In order to be deemed to have accepted the terms of service, the purchaser must be put on notice that certain terms of service may apply. If the terms of service are not visible and/or accessible, courts have found the notice requirement to be lacking and as such, the purchaser may not be bound to the terms of the agreement. An analysis of the terms of service of major consumer websites has found that they frequently contain clauses that impede consumer rights in substantial and often unexpected ways.

Legal consequences

United States

Few cases have considered the validity of clickwrap licenses. Still, in the cases that have challenged their validity, the terms of the contract have usually been upheld: *''Feldman v. Google, Inc.'', 513 F.Supp.2d 229 (E.D.Pa. 2007) (upholding forum-selection clause) *''In re RealNetworks, Inc. Privacy Litigation'', No. No. 00-1366, 2000 WL 631341 (D. Ill. May 8, 2000) (upholding an arbitration clause) * ''Hotmail Corp. v. Van$ Money Pie'', No. 98-20064, 1998 WL 388389 (N.D. Cal. Apr. 16, 1998) (granting

preliminary injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...

for alleged breach of

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...

for violating the terms of service by using a Hotmail account to send

spam Spam may refer to: * Spam (food), a canned pork meat product * Spamming, unsolicited or undesired electronic messages ** Email spam, unsolicited, undesired, or illegal email messages ** Messaging spam, spam targeting users of instant messaging ...

pornography Pornography (often shortened to porn or porno) is the portrayal of sexual subject matter for the exclusive purpose of sexual arousal. Primarily intended for adults,

). The court said that clicking the clickwrap button after notice gave consent. * ''I. Lan Sys., Inc. v. Netscout Serv. Level Corp.'', 183 F. Supp. 2d 328, 336 (D. Mass. 2002) (upholding a clickwrap agreement on two grounds: first, clickwrap is simply "Money now, terms later" contract formation; second, the court found that the "additional terms" of the clickwrap license was not material under UCC (§207(2)(b)). *''Caspi v. Microsoft, LLC'', held a forum selection clause in an online membership agreement was consented to when the user clicked the "I agree" symbol of the agreement in order to proceed with registration. *In ''A.V., et al. v iParadigms, LLC'', Judge Claude M. Hilton granted summary judgment on the students' complaint in favor of iParadigms/

Turnitin Turnitin (stylized as turnitin) is an Internet-based plagiarism detection service run by the American company Turnitin, LLC, a subsidiary of Advance Publications. Founded in 1998, it sells its licenses to universities and high schools who then ...

, because they had accepted the click-wrap agreement on the Turnitin website. Even though courts have ruled some clickwrap licenses to be enforceable contracts, it does not follow that every term of every clickwrap license is enforceable. Clickwrap licenses must still meet the criteria for enforceability of a unilateral form contract. For example, see '' Bragg v. Linden Research, Inc.'', 487 F.Supp.2d 593 (E.D. Pa. 2007), in which the judge found certain aspects of the ''

Second Life ''Second Life'' is an online multimedia platform that allows people to create an avatar for themselves and then interact with other users and user created content within a multi player online virtual world. Developed and owned by the San Fr ...

'' clickwrap agreement "unconscionable, and therefore unenforceable

Cases in detail

In '' Register.com, Inc. v. Verio, Inc.'', 356

F.3d The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by We ...

393 ( 2d. Cir. 2004), the court described a clickwrap license, even though the license in question was distinguished from a clickwrap license

Essentially, under a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.

An earlier case, '' Specht v. Netscape Communications Corp.'', 150 F.Supp.2d 585 ( S.D.N.Y. 2001), ''aff'd'', 306

17 ( 2d. Cir. 2002), gave perhaps the clearest definition of a clickwrap license.

A click-wrap license presents the user with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an
icon An icon () is a religious work of art, most commonly a painting, in the cultures of the Eastern Orthodox, Oriental Orthodox, and Catholic churches. They are not simply artworks; "an icon is a sacred image used in religious devotion". The mos ...
. n12 The product cannot be obtained or used unless and until the icon is clicked. For example, when a user attempts to obtain
Netscape Netscape Communications Corporation (originally Mosaic Communications Corporation) was an American independent computer services company with headquarters in Mountain View, California and then Dulles, Virginia. Its Netscape web browser was on ...
's Communicator or Navigator, a web page appears containing the full text of the Communicator / Navigator license agreement. Plainly visible on the screen is the query, "Do you accept all the terms of the preceding license agreement? If so, click on the Yes button. If you select No, Setup will close." Below this text are three button or icons: one labeled "Back" and used to return to an earlier step of the
download In computer networks, download means to ''receive'' data from a remote system, typically a server such as a web server, an FTP server, an email server, or other similar system. This contrasts with uploading, where data is ''sent to'' a remote ...
preparation; one labeled "No," which if clicked, terminates the download; and one labeled "Yes," which if clicked, allows the download to proceed. Unless the user clicks "Yes," indicating his or her assent to the license agreement, the user cannot obtain the
software Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work. At the lowest programming level, executable code consist ...
.

The clickwrap method was presented to the court in ''

ProCD v. Zeidenberg ''ProCD, Inc. v. Zeidenberg'', 86 F.3d 1447 (7th Cir., 1996), was a court ruling at the United States Court of Appeals for the Seventh Circuit. The case is a significant precedent on the matter of the applicability of American contract law to new ...

'', 86 F.3d 1447 (7th Cir. 1996), where Zeidenberg purchased a CD-ROM, created by ProCD, which contained a compilation of a telephone directory database. Upon purchase of this CD-ROM, Zeidenberg installed the software onto his computer then created a website which offered to visitors the information contained on the CD-ROM at a price less than what ProCD charged for the software. Prior to his purchase of the software, Zeidenberg may not have been aware of any prohibited use or dissemination of the product without consent by ProCD. However, upon preparing to install the software onto his computer, the software license appeared on his computer screen and would not allow him to continue with the installation without indicating acceptance by clicking his assent in a dialog box. The court held that Zeidenberg did accept the offer and the terms contained within the license by clicking through the dialog box. Zeidenberg had the opportunity to read the terms of the license prior to clicking the acceptance box. The court further stated that Zeidenberg could have rejected the terms of the contract and returned the software. (''Id.''). More recently, in the 2017 opinio
Meyer v. Uber Technologies
the Second Circuit of the United States Court of Appeal held that users were on fair notice of the arbitration provision in Uber's registration process, because Uber presented the app’s terms of service via hyperlink. “While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes,” Judge Chin wrote. “The user is still on inquiry notice." The Court further held that “ en considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone..." Instead, the Court explained that “ reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.”

European Union

On 21 May 2015, the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...

decided in the case of El Majdoub v. CarsOnTheWeb.Deutschland GmbH (case n° C-322/14), on a referral from a German court, that click-wrap agreements are acceptable under certain circumstances as a "durable record" of the acceptance of general conditions within the meaning of Regulation 44/2001 (now replaced by Regulation 1215/2012, also known as the 'Brussels I Recast Regulation').El Majdoub v CarsOnTheWeb.Deutschland GmbH: ECJ 21 May 2015
accessed 1 May 2021

References

External links

YouTube Video:''
The Clickwrap and The Biggest Lie on the Internet