Terms of use binding to website users

For the London Free Press - October 24, 2011 - Read this on Canoe Are Browse-wrap agreements binding?

Most web sites contain a link at the bottom of the page to "terms of use". But are they binding on those who use the website? A recent Canadian case says they are.

Despite the prevalence of terms of use linked to the bottom of web pages, Canadian courts have not spent much time discussing whether they are binding the same way that "click-wrap" agreements are.

The Ontario Superior Court decision in Century 21 Canada Limited Partnership versus Rogers Communications Inc. shed some light on this issue. The case discussed the evolution of agreements as software sales have shifted from boxed software purchases to online.

"Shrink wrap" agreements are contracts that are entered into by the purchaser when they tear open the shrink wrap of a software purchase. Implicit in the opening of the packaging is the idea that the user is agreeing to be bound by the terms of use.

"Click wrap" agreements are when users are required to indicate their agreement by clicking on an "I Agree" box. Implicit in the "click" is the idea that the user is agreeing to be bound by the terms of use.

A "browse wrap" agreement does not require the user to click an "I Agree" box, instead the mere use of the website on which it appears may lead to a finding that the user is bound by the terms of use.

Click wrap agreements are binding in Canada pursuant to case law and legislation. The difficulty in "browse wrap" agreements is that the user may not realize a website contains terms of use, and even if the user is aware of the terms of use, the user may not agree to be bound.

But being bound by agreements one has not read is not a new concept. There are a series of ticket cases where fine print on the back of a ticket or document were held to be binding, provided that it is brought to the person's attention. It doesn't matter if the person actually read it, provided they could have easily read it if they wanted to.

Zoocasa, a subsidiary of Rogers Communications Inc., was "scraping" online real estate listings from Century 21's website and reposting them on its own site with additional information. Zoocasa admits it had knowledge of Century 21's terms of use, which included a term prohibiting scraping. The court found Zoocasa's access and use of the website following actual notice of the terms of use constituted acceptance of the terms of use. Part of the court's decision turned on the fact that Zoocasa is a sophisticated business entity and is therefore familiar with the concept of terms of use within a website.

The court did not have to determine if Zoocasa had clear notice of the terms of use because this fact was admitted.

Given that it is common practice for websites to have links to terms of use at the bottom of its pages, it would be logical to assume that would be sufficient to constitute notice.