Browserwrap vs Clickwrap Agreements: A Comparative Analysis

While “browsewrap vs clickwrap” appears to be a popular debate in the sphere of web agreements, legal teams often grapple with the intricate challenge of balancing user experience, enforceability, and compliance when deciding the best fit for their organization.

On one hand, browsewrap agreements are convenient and non-disruptive but less enforceable. Clickwrap agreements, on the other hand, are slightly more disruptive to user experiences but more enforceable in court.

It is important to weigh them on the right scale, as implementing the wrong agreement mechanism in your digital contracts may render your terms and conditions unenforceable and even result in financial losses.

In this guide, we will explore the fundamentals of browsewrap vs clickwrap agreements, their key differences, real-life scenarios, and insights on choosing the best fit.

What is a browsewrap agreement?

A browsewrap agreement is a form of web agreement that allows users and customers to access digital content, products, or services based on the assumption that they are aware of and have consented to the company's terms and conditions (T&Cs).

The T&Cs are typically written on a separate page and hyperlinked throughout the company’s digital properties—website, apps, digital devices, etc.

Within the T&Cs, companies often include a line specifying that continued usage of their website or products constitutes awareness and acceptance of their terms and conditions.

Starbucks' T&C page is a good example. Notice the underlined sentence.

As its name implies, "browsewrap" comes from the idea that users are bound by the terms of the agreement simply by browsing or using the website. The website visitor does not need to click any buttons or take any action to express their acceptance of the stipulated T&Cs.

What is a clickwrap agreement?

A clickwrap agreement is the direct opposite of a browsewrap agreement. It allows users to access digital content, products, or services ONLY AFTER they take specific actions to demonstrate awareness and acceptance of existing T&Cs.

This affirmative action is relatively simple, usually a click of a button that says “I Agree” or checking a box that indicates acceptance.

With clickwrap agreements, the T&Cs are typically written on a separate page and hyperlinked to a sentence that expresses awareness and acceptance alongside a checkbox or a button.

Sometimes, the T&Cs can exist in a scroll box on the same page as the "action" page (e.g., signup, billing, and survey pages). This puts the company's legal statement in front of the user, requiring them to scroll through the entire content and confirm their consent before accessing the company's products, services, or digital content.

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“An even stronger type of clickwrap requires the user to “scroll” through the user agreement before they have the ability to accept it.  The more steps the user must take to “agree,” the stronger the odds of enforcing the agreement.”

~ Sterling Miller, CEO and Senior Counsel, Hilgers Graben PLLC
Ten Things: Web User Agreements

Also read: Clickwrap Agreements—The Ultimate Guide

Browsewrap vs clickwrap: Key differences

Browsewrap and clickwrap are both popular mechanisms for acquiring consent in web agreements. However, they’re fundamentally distinct from each other. This is evident in their implementation methods, how they’re presented, their legal weights, and how they impact user experience across digital properties.

Let’s dive into the details.

#1 Presentation methods

With browsewrap agreements, T&Cs are often written on separate pages and hyperlinked at the footer section or sidebars of the company’s web pages. The user has to locate these hyperlinked pages, access them, and read their content.

Clickwrap agreements are presented as a gateway that users have to pass through to access products and services on digital platforms. The terms and conditions are often hyperlinked to an affirmation statement and placed with a checkbox or button that says "I Agree." 

With an emphasis on undisputable awareness, clickwrap agreements don't require users to search for T&Cs manually. Instead, they are placed in conspicuous and prominent locations on relevant pages. This ensures that users are more likely to notice and engage with the agreement.

#2 Consent acquisition approach

In a browsewrap agreement, the user's consent is “implied” by their use of the website or service. The agreement is often presented in a passive manner, and users are not explicitly required to acknowledge or actively accept the terms. It is assumed they have agreed to the terms by continuing to use the website or service.

Clickwrap agreements approach this differently. In clickwrap agreements, users must actively consent to the terms by taking a specific action, such as clicking a checkbox or a button that explicitly confirms their agreement. The user will be unable to get access to the company's products and services without explicitly consenting to its T&Cs.

#3 Enforceability

The enforceability of a browsewrap agreement can be more challenging compared to a clickwrap agreement. Since users are not explicitly required to acknowledge the terms, it can be harder for a website or service provider to prove that the user had actual knowledge of the terms and agreed to them. 

Courts may scrutinize the design, placement, and visibility of the browsewrap agreement to determine its enforceability.

On the other hand, clickwrap agreements are generally more enforceable because they require users to take specified action to indicate their consent. Clicking a checkbox or button explicitly demonstrates that the user has read and agreed to the terms. Organizations can always present evidence of a user's consent in court to improve their chances of enforcing their T&Cs.

“The keys to an enforceable user agreement come down to “notice” to and “acceptance” by the user.  Did the user have a chance to read and review the user agreement and give some form of consent?  If not, you can have the best user agreement in the world, but it’s useless (and that is not a fun conversation with the C-Suite).”

~ Sterling Miller, CEO and Senior Counsel, Hilgers Graben PLLC
Ten Things: Web User Agreements

#4 Record keeping

Record keeping for browsewrap agreements can be challenging since there is no explicit action or record of user consent. Sometimes, the company may rely on website analytics or user behavioral data for record-keeping.

Clickwrap agreements generally have better record-keeping capabilities. Each time a user accepts the terms, their consent is explicitly recorded, often through a timestamp and a unique identifier. This provides a clear record of the user's consent, which can be valuable in legal proceedings.

Also read: Tips to Store Your Contracts Effectively

#5 Impact on user experience

Browsewrap agreements are typically less intrusive and do not interrupt the user's experience. Since the agreement is not presented actively during the user's interaction, it doesn’t slow down registration or checkout processes.

Clickwrap agreements can have a more noticeable impact on the user experience. Users are required to take an additional step to accept the company’s terms, which may slow down the registration or checkout process.

Browsewrap vs clickwrap in real-life scenarios

Browsewrap and clickwrap agreements have been subject to numerous legal proceedings that put their enforceability to the test. These legal challenges have played a crucial role in shaping the understanding and requirements surrounding these types of agreements.

In this section, we will examine some court cases that adequately highlight the validity and enforceability of browsewrap and clickwrap agreements.

#1 Brett Long vs Provide Commerce, Inc.

In 2016, a customer, Brett Long, filed a lawsuit against Provide Commerce Inc. after buying a set of floral arrangements from Proflowers, a subsidiary of Provide Commerce Inc.

Long alleged that the company had advertised the floral arrangements as "fully assembled," but upon purchasing the item, he received a do-it-yourself kit that requires customers to assemble everything by themselves.

As stipulated in its terms of use page, which was hyperlinked at the footer of Proflowers’ web pages, Provide Commerce moved to enforce arbitration in court, stating that Long was subject to its T&Cs, including its dispute resolution clause.

However, Long denied having any knowledge of such terms, stating that he was not bound to those T&Cs because he was never aware of them, nor did he consent to them.

After considering the facts of the situation, alongside statements from the plaintiff and defendant, the court ultimately ruled in favor of Long because there was no way to prove that he was aware of and consented to the content of the T&C page.

#2 DeJohn v Register.com

In 2003, David Dejohn attempted to buy five .tv domain names for 50 dollars each through Register.com.

After signing up on the platform and initiating the purchase, he got an email from Register.com confirming that his application to buy all five domain names had been approved.

However, this would prove to have been an error from Register.com because he got a second email informing him that his initial confirmation email was incorrect and that only one out of his five applications was approved. His entire payment was also refunded by the company.

Livid, Dejohn filed a lawsuit against Register.com and The .TV Corp. International for a breach of contract, fraud, and misleading trade practices.

Register.com responded by filing a motion to dismiss the case, citing a clause in their Service Agreement.

The Service Agreement explicitly stated that Register.com would not be held accountable for unsuccessful registrations or domain name renewals. It also required every user to consent to the T&Cs of The .TV Corp, which were referenced in separate sections.

Before completing the application for each domain name, Dejohn was required to read the Service Agreement and consent by clicking on a checkbox. 

He argued that Register.com’s Service Agreement was ambiguous, inconsistent with .TV’s T&Cs, and consequently unenforceable.

However, the court ultimately ruled in favor of Register.com and .TV, stating that as long as Dejohn had clicked on the box demonstrating his awareness and consent to the Service Agreement, he was bound by its T&Cs.

As you may have noticed, the first case involved a browsewrap agreement, while the second involved a clickwrap agreement.

It is important to note that merely getting users to click your clickwrap agreement doesn’t automatically mean it is enforceable. It does give you a better chance, but the court will evaluate other factors like placement, fairness, and compliance with existing regulations.

“Where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users not prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”

~ United States Court of Appeals for the Ninth Circuit on Nguyen v. Barnes & Noble, Inc.

Browsewrap vs clickwrap: Which should you use?

While browsewrap is convenient and less disruptive, more companies are porting to clickwrap agreements. This is mainly because clickwrap has better enforceability and can protect their interests in legal proceedings.

When implemented correctly, clickwrap agreements provide a clear process for acquiring consent to company terms and can be used in a wide variety of web agreements.

Browsewrap agreements are still relevant for low-risk web agreements. You may choose to use them in the following instances:

• Informational websites: Browsewrap agreements can be used for informational websites where users are merely browsing through pages and consuming content
• Nontransactional website: Any website that doesn't involve payments, account creation, or other forms of exchange may safely use a browsewrap agreement

That said, businesses should generally choose clickwrap agreements for their enforceability, versatility, clear consent, and risk mitigation capabilities.

Wrapping up

Browsewrap and clickwrap agreements have both led the front lines of web agreements over the last few years. But following multiple considerations and experiences from legal teams across various industries, clickthrough agreements have proven to be more reliable, enforceable, and legally binding.

SpotDraft’s Clickthrough functionality is structured in accordance with industry best practices, offering some of the most efficient yet user-oriented ways to acquire consent in web agreements. It enables you to capitalize on the benefits of clickwrap by seamlessly embedding it into your websites, digital devices, and software applications.

“I have seen a demo of SpotDraft’s CLM technology and they should be on your short list of vendors to talk to about a contract management system.”

~ Sterling Miller, CEO and Senior Counsel Hilgers Graben PLLC
Ten Things: Cool Tech for In-House Counsel