Website terms incorporated by "continue" button, rules US court 14 Sep 2007

OUT-LAW.com reports that a US Court of Appeal has ruled that a website can incorporate terms into a contract via a "continue" button alone - i.e. without requiring users to click on a checkbox to explicitly agree to the site's conditions of use. It seems that simply providing a link to terms and conditions above the "continue" button is enough to satisfy US legal requirements.

This ruling came as a result of a user of dating website True.com suing the owners on that grounds that its offer of free membership to women but not men amounted to gender discrimination. As part of the case the user, argued that he had not agreed to terms and conditions when he clicked "Continue" on the website's registration form.

As you can see in the image below, True.com's registration form features a statement that reads: "I am at least 18 years old, and I have read and agree to the TRUE Terms of Use and Code of Ethics." Beneath this statement is a single button marked "Continue", but no checkbox.

The website owner, TrueBeginnings LLC, claimed that clicking on the "Continue" button represented users' acceptance of the site's terms and conditions...and the US Court of Appeal agreed - thereby paving the way for mass removal of terms and conditions checkboxes from US websites.

Struan Robertson, a technology lawyer with Pinsent Masons and editor of OUT-LAW.com, said that websites contracting with customers in the UK should not follow the example of True.com however:

"We always recommend a check box as an absolute minimum. If you want to be sure that your customers are signed up to your terms, don't make them an optional link that's easily missed.

"Website users typically do whatever is required to achieve a goal. If the goal is signing up to a site, they'll complete compulsory fields and hit the continue button. They won't read all the text on the screen or examine all the links and there's a good chance that a court in the UK will recognise that.

"The solution is to use a compulsory check box. Put that next to a line that says 'I agree to the terms and conditions' and make the words 'terms and conditions' a clear link. That's the only safe way, unless you display the conditions in full as a compulsory part of the sign-up process.

"You can't force people to read your small print -- most people don't bother -- but you can maximise the opportunity, and that will protect you in a dispute."

Robertson also says that checkboxes should not be "pre-ticked" and that website owners must be careful not to put words into a user's mouth:

"Don't use the words 'I have read, understand and accept the terms and conditions' with a button, because in the opinion of the Office of Fair Trading, you are then encouraging users to make undertakings that could be untrue, since users can check the box without really reading the conditions. Instead, the OFT recommends the warning notice that encourages the user to read the conditions."