Every time you interact with an app or website, you’re entering into a digital contract. But not all online contracts are created equal. Some are clear and enforceable, others are vague and contested. Understanding the different types of online agreements helps you see which ones are more likely to stand up in court.
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1. Clickwrap Agreements: The Gold Standard
What it is:
A clickwrap agreement requires users to actively click “I Agree” or check a box before proceeding.
Example:
Why it works:
Courts generally enforce clickwrap agreements because they require an affirmative action from the user. You can’t create an account without actively agreeing to the terms.
Key Case: Feldman v. Google (2007) — the court upheld Google’s AdWords agreement because the user had clicked “I Agree,” showing clear assent.
2. Browsewrap Agreements: The Weak Link
What it is:
Browsewrap agreements don’t require active agreement. Instead, terms are buried in a footer or linked at the bottom of a page, with the idea that “use of the site = agreement.”
Example:
- A website footer saying “By using this site, you agree to our Terms.”
Why it fails:
Courts are skeptical of browsewrap agreements, because users aren’t usually aware of them. If there’s no clear notice, it’s hard to prove consent.
Key Case: Specht v. Netscape (2002) — users weren’t bound by terms hidden below the download button because they weren’t clearly visible.
3. Sign-In-Wrap Agreements: The Hybrid
What it is:
A newer approach that ties agreement to the act of signing up or logging in. The ToS link is shown near the “Sign Up” button, often with wording like:
“By signing up, you agree to our Terms of Service and Privacy Policy.”
Example:
- Creating a X, Instagram, or TikTok account
Why it works (sometimes):
Courts will enforce sign-in-wrap agreements if the notice is conspicuous and unambiguous. Placement and wording matter a lot.
Key Case: Meyer v. Uber (2017) — the Second Circuit upheld Uber’s sign-in-wrap terms because the screen design made the ToS link clear enough for a reasonable user.
4. Other Emerging Models
- Scrollwrap: Users must scroll through the terms before clicking “I Agree.” (More protective for businesses, but less user-friendly.)
- E-Signatures: For higher-stakes contracts (like DocuSign), users provide a digital signature under the E-SIGN Act, giving it the same weight as ink.
- Smart Contracts: Blockchain-based agreements that self-execute once coded conditions are met. Still developing, but could shape the future of online terms.
Key Takeaway
- Clickwrap = Strongest. Courts consistently uphold them.
- Browsewrap = Weakest. Risky for businesses, easy for consumers to challenge.
- Sign-in-wrap = Middle ground. Valid if notice is clear and placed properly.
When you’re online, look carefully at how companies present their terms. The design of the page can determine whether you’re truly bound.
If you want to read more about the Types of Online Contracts, please see Recommended Books.
Next up in this series: What’s Really Inside the ToS? We’ll unpack the most common (and surprising) clauses that companies slip into their contracts.
