A clickwrap or clickthrough
agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy.
Privacy policies,
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 legal 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, ...
policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for
social media
Social media are interactive technologies that facilitate the Content creation, creation, information exchange, sharing and news aggregator, aggregation of Content (media), content (such as ideas, interests, and other forms of expression) amongs ...
services like
Facebook
Facebook is a social media and social networking service owned by the American technology conglomerate Meta Platforms, Meta. Created in 2004 by Mark Zuckerberg with four other Harvard College students and roommates, Eduardo Saverin, Andre ...
,
Twitter
Twitter, officially known as X since 2023, is an American microblogging and social networking service. It is one of the world's largest social media platforms and one of the most-visited websites. Users can share short text messages, image ...
or
Tumblr
Tumblr (pronounced "tumbler") is a microblogging and Social networking service, social networking website founded by David Karp in 2007 and is owned by American company Automattic. The service allows users to post multimedia and other content ...
, 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" 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 indicate 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, or ...
on a
dialog box
In computing, a dialog box (also 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 are classified as " modal" or "modeless", dep ...
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, 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
A web page (or webpage) is a Web document that is accessed in a web browser. A website typically consists of many web pages linked together under a common domain name. The term "web page" is therefore a metaphor of paper pages bound together in ...
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 providing direct access to Data (computing), data by a user (computing), user's point and click, clicking or touchscreen, tapping. A hyperlink points to a whole document or to ...
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 an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable reme ...
for alleged breach of
contract
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
for violating the
terms of service by using a
Hotmail
Outlook.com, formerly Hotmail, is a free personal email service offered by Microsoft. It also provides a webmail interface accessible via web browser or mobile apps featuring mail, Calendaring software, calendaring, Address book, contacts, and ...
account to send
spam
Spam most often refers to:
* Spam (food), a consumer brand product of canned processed pork of the Hormel Foods Corporation
* Spamming, unsolicited or undesired electronic messages
** Email spam, unsolicited, undesired, or illegal email messages
...
or
pornography
Pornography (colloquially called porn or porno) is Sexual suggestiveness, sexually suggestive material, such as a picture, video, text, or audio, intended for sexual arousal. Made for consumption by adults, pornographic depictions have evolv ...
). 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, 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 a multiplayer virtual world that allows people to create an Avatar (computing), avatar for themselves and then interact with other users and user-created content within a multi-user online environment. Developed for person ...
'' clickwrap agreement "
unconscionable, and therefore unenforceable".
Cases in detail
In ''
Register.com, Inc. v. Verio, Inc.'', 356
F.3d 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
F.3d 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, Catholic Church, Catholic, and Lutheranism, Lutheran churches. The most common subjects include Jesus, Mary, mother of ...
. n12 The product cannot be obtained or used unless and until the icon is clicked. For example, when a user attempts to obtain Netscape'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 systems. 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 consists of computer programs that instruct the Execution (computing), execution of a computer. Software also includes design documents and specifications.
The history of software is closely tied to the development of digital comput ...
.
The clickwrap method was presented to the court in ''
ProCD v. Zeidenberg'', 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 opinion 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), officially 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 Union, it is tasked with interpreting ...
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').
Research
Clickwraps have been shown to have an agenda-setting function, wherein aspects of clickwraps like prominent join buttons are easier to notice than the links to the privacy policies.
See also
*
Browse wrap
*
Electronic signature
*
Electronic Signatures in Global and National Commerce Act (ESIGN)
*
Internet privacy
Internet privacy involves the right or mandate of personal privacy concerning the storage, re-purposing, provision to third parties, and display of information pertaining to oneself via the Internet. Internet privacy is a subset of data privacy. P ...
*
Rudder v. Microsoft Corp.
*
Shrink wrap contract
*
SoftMan Products Co. v. Adobe Systems Inc.
*
Software license
A software license is a legal instrument governing the use or redistribution of software.
Since the 1970s, software copyright has been recognized in the United States. Despite the copyright being recognized, most companies prefer to sell lic ...
References
External links
YouTube Video:''
The Clickwrap and The Biggest Lie on the Internet
;Examples of Clickwrap contracts
Online electronic signatures using clickwrapT-Mobile uses clickwrap for online phone purchases
{{United States contract case law
Terms of service
Computer law