1

Suppose I have a store, and on the farthest wall from the entrance, I have an inconspicuous door with a very small sign labeled "Terms and Conditions"; behind that door is a document saying "By entering this store, you agree to not take photographs inside, or pay us $1,000 per picture." (Assume it is otherwise legal to take photos in the store and this is the only notice that doing so is not allowed.) Obviously, this doesn't make any sense and is unlikely to be enforceable; you cannot reasonably know about it before entering, and most shoppers could probably shop for hours without seeing it. If someone actually read it, or noticed the door's label and chose not to open the door and read the agreement, then it might be enforceable, but few people will.

However, many Web sites (including Stack Exchange) do exactly the same thing. The terms of service are hidden behind a tiny link in the footer, where few viewers will ever see it. Is this enforceable?

Someone
  • 17,046
  • 10
  • 84
  • 177

1 Answers1

2

Generally browse wrap terms of service have been upheld if they not unconscionable or entirely unforeseeable.

The case law recognizes that it must be possible to see the link to the ToS and has ruled out some instances where it is very hard indeed to find, but the cases where that has been held have been very extreme (e.g. a 6 point font in navy blue v. a black background in an obscure corner).

ohwilleke
  • 211,353
  • 14
  • 403
  • 716
  • So you're legally expected to load a Web page, immediately scroll to the bottom, read the ToS, then go back to the original page? – Someone Sep 28 '22 at 19:41
  • @Someone Yes. Pretty much. – ohwilleke Sep 28 '22 at 19:42
  • I guess that's not any more unreasonable than expecting everyone to have memorized the entire US Code and all state laws, as well as the outcomes of a large number of American court cases as well as English ones prior to 1776. – Someone Sep 28 '22 at 19:45
  • 1
    other picture: the ToS need to be advertized and have to be clearly indicated above any button and can't be preselected in the EU. And they can't be unconscionable, and any unconscionable clause is most likely void. – Trish Sep 28 '22 at 20:20
  • 2
    The "TOS" which you propose for the store should be similar to the purported webpage TOS. You would not be bound by a hidden agreement that you did not actually agree to that obliges you to pay money for an arbitrary action in a physical store, and you would not be so bound on a web page. Thus if I have some bottom-of-page link called "TOS" that says "You agree to pay me $100 if you click any link on this website", there is no evidence that I have agreed to this unusual condition. There has to be affirmative agreement, at least if the "condition" involves an obligation to pay. – user6726 Sep 28 '22 at 20:27