Level Up!: Do Users Need To Click "I Agree" to TOS Button To Give Consent?

(TLDR: No. Courts decide these cases simply by whether the person had reasonable notice of the Terms & Conditions. If you have a website/app and plan on collecting personal info or just have customers in general, the I highly suggest you read more about this topic. Disclaimer: IANYL.)

As a UX designer, I try to make things that are as simple and painless as possible for users to use. One pain (and protection) that almost every product/app needs is a Terms of Service (TOS) agreement, aka Terms of Use (TOU), aka Terms And Conditions (T&C), aka End User License Agreement (EULA).

The current "best practice" for showing TOS to users is by providing a clear link near the "continue to use app" button (which could be a register or purchase button). This is so that most users don't have to go through the extra step of clicking "I Agree" to something that they likely didn't read. Also, having the TOS pop-up interrupts users' flow (and can sometimes be quite scary-looking).

But, unfortunately, before today, I never really thought about the legal consequences of the different methods to show users the terms and conditions. I just used methods that I noticed many other great UX designers and companies using. So, I wasn't able to explain the legal-ness (to my satisfaction) to concerned client.

I took it upon myself to take the time to do some research around this area and organize it into this post, with sources and references cited.

In my research, I have found that the courts also know that most users don't read the TOS, and clicking "I agree" doesn't mean that the user has read it. What the courts look for is mainly that the user has had the easy opportunity to find and read the TOS, if they wanted to.

There are two main ways that users "agree" to TOS:

  • Click-wrap Agreement, aka "click-through agreement": This means that users must take some sort of action that signifies their consent to the TOS. This action could be a button that says "I Agree". Also, near the call to action, it is sufficient to say "By [continuing], you agree to our Terms of Service", with the TOS having a direct link.
  • Browse-wrap Agreement, aka "not a contract": Basically, saying users agree to TOS by browsing website/app, and the link to TOS is not extremely easy to find in regular use. A link at the bottom of the website could be considered hard to find, especially when there are many other links down there too.

My Summary (Just from my research (links below), though more can always be done.)

  • If your app collects or uses personal information, then use the click-through (clickwrap) agreement.
  • Remove any clauses about unilaterally editing contract at any time.
  • Add ability for company to modify terms, with prior notice. [More research needed for exact words to use]
  • Add ability for users to reject TOS, e.g. by terminating account. 

A few sources I read, in order of my recommended readings (Yes, there is a "Good" before "Great", just because of what this post was supposed to be about):
 - Great: How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked (Forbes)
 - Great: The Clicks That Bind: Ways Users "Agree" to Online Terms of Service (EFF)
 - Good: Terms Of Use And Privacy Policy Best Practices (UpCounsel)
 - Great: Website Terms and Conditions: Some Best Practices (JDSupra)
 - Miscellaneous, but good: Terms of Service; Didn't Read (TOSDR)
 - Good: Browse wrap (Wikipedia)
 - Okay: Clickwrap / Browsewrap Agreements: It’s the Notice, Stupid!

Further Reading:
 - Terms of Use and the Digital Millennium Copyright Act (DCMA)
 - Search "Clickwrap vs browsewrap"

Disclaimer: I am not your lawyer (IANYL). This post's only intention is to help point readers in the right direction to learn more about this topic.

~ Danial Goodwin ~

ps - Bonus info! The terms "click-wrap" and "browse-wrap" come from physical goods/software that was "shrink-wrapped". Manufacturers had license agreements that basically said users agree to TOS by removing the shrink-wrap. (Source: Wikipedia)

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