Browsewrap vs. Clickwrap: Navigating the Fine Print of Online Agreements

Author: Samparna Mishra, Xavier Law School, XIM University 

In the modern legal system contract law plays an important role in facilitating smooth and secure transactions in the business world. The new technology era just helped in advancement of contract law. The technology helped in transformation of contracts into an efficient and accessible contract. The electronic standard form of contracting has grown in popularity with computers and the internet. 

There are procedural burdens in both traditional contract settings and electronic contracts but electronic contract users deal with additional burdens like finding, using and understanding electronic terms. The users are unaware of various ways on how they end up entering into electronic contracts or even how they are formed because they are having this nonchalant behaviour of clicking through various websites without understanding the importance of terms or without thinking about the aftermath of checking a box that binds them with these terms. 

A clickwrap Agreement is a form of digital contract that requires users to actively indicate their acceptance of terms and conditions before accessing a service and making a purchase or registering for the platform. It is commonly used in online transactions, software installations, and website sign-ups. Normally the terms and conditions are presented in a pop-up window. The user must perform an explicit action like clicking in a box or clicking the “I Agree” button. Users are generally denied access if they don’t take this step.

The agreement presents a set of terms and conditions and the user must accept them to proceed. The terms should be written in a form which is easy to understand and should be free of ambiguity. During this process both parties must exchange something for value for the agreement to be valid. The service provider obtains the user’s consent while the user gains access to the product or service. It comes with a system that logs user acceptance. This record includes details like IP address, device information, date and time of agreement acceptance. These records serve as evidence in legal disputes.

Browse wrap agreements are online contracts used by websites. These agreements state that by simply using the website, the user agrees to the site’s terms and conditions that are usually accessible through a hyperlink. These agreements are mainly employed by businesses to present their legal terms and are often found to be unenforceable. The hyperlink in the browsewrap agreement is generally placed at the bottom of the webpage. In such agreements the user usually accepts the terms merely by continuing to browse the site. However, courts have consistently found that the lack of explicit consent and combined with the inconspicuous placement of the terms makes these agreements difficult to enforce.

The enforceability of electronic contracts in India is primarily governed by Section 10 of the Indian Contract Act and Section 10A of the Information Technology Act. There is no strict legal framework specifically regulating such agreements and their enforceability is determined on a case by case basis. Several statutory provisions indirectly address their validity and enforceability. Section 11 of Indian Contract act 1872 barres people like minors and persons of unsound mind etc. from the contractual capacity so they cannot be legally bound by clickwrap agreements. But a huge number of online users are minors which raises concerns about the legitimacy of such agreements signed by minors. The law also remains ambiguous regarding whether such agreements are void or merely voidable.

Section 10-A of IT Act states that E-contracts cannot be deemed unenforceable only because they were formed online. Indian courts have upheld this principle in various cases like Trimex International FZE Ltd. V. Vedanta Aluminium Ltd. India, ruled that contracts formed over email are valid if their terms are clear and unequivocal. In CIT V. Gujarat Pipavav Port Ltd. Here the Income Tax Tribunal ruled that clickwrap agreements are unenforceable when one party has excessive bargaining power which makes them unfair to weaker parties. 

The Hotmail Corp. Vs. Van Money Pie Inc. established that clickwrap agreements are enforceable when users explicitly consent by clicking “I Agree” even if they do not read the terms. 

In Brett Long Vs. Provide Commerce Inc. the California Appellate Court examined validity of browse wrap agreements that binds users to a website’s terms of use without requiring explicit consent. The case involved a dispute between Brett Long and Provide Commerce Inc. that operates ProFlowers.com. The plaintiff alleged that a flower arrangement he purchased did not match the advertised product. The Respondent wanted to go for an arbitration as per arbitration clause in its browse wrap agreement which was accessible via a hyperlink at the bottom of the website. 

The court ruled in favour of the plaintiff and stated that merely placing a hyperlink to terms of use on a website is not enough to provide reasonable notice to users. It emphasised that for a browse wrap agreement to be enforceable the user must receive actual or constructive notice of the terms. 

The case of Forrest Vs. Verizon  states the effective use of a clickwrap agreement to provide notice to users. In this case a dispute arose when a Verizon customer challenged a specific clause within the company’s Terms of service arguing that they had not been properly notified of it. The customer had agreed to Verizon’s terms of Service through a clickwrap agreement presented in a scroll box. At the top of this agreement, a clear notice stated the lines Please “Read the Following Agreement Carefully before proceeding with the transaction” and the user had to click to confirm their acceptance of the terms. But the scroll box was small in size, of thirteen pages, it was difficult to read and the disputed clause was positioned near the end of the document. The appellate court disagreed with the customer and determined that they were provided with ample notice. They also cited basic principles of contract where any person before entering into a contract had the opportunity to read and they should be bound to the agreement regardless of whether they actually read the contract or not.

Specht Vs. Netscape  Here the key differences between browse wrap and clickwrap agreements are highlighted. Unlike clickwrap agreements, browser wrap agreements do not require users to explicitly indicate their consent; instead , the users are considered to have accepted the terms simply by using the website or mobile application. This can create legal complications. In this case Netscape provided a software download link but the terms of service were only accessible by scrolling to another page. The user who had not seen the agreement before downloading the software was later sued for federal violations. The court ruled that a fundamental requirement for contract formation is mutual assent. It held that clicking a download button does not constitute agreement to terms unless it is made clear that doing so signifies acceptance. Because the user was neither informed of nor required to acknowledge the terms before using the software the browsewrap agreement was deemed unenforceable.

In case of browsewrap agreements courts generally favour agreements that clearly and repeatedly notify users of their terms. In Hubbert Vs. Dell Dell's website consistently displayed a message stating that all sales were subject to its Terms and Conditions along with an easily accessible hyperlink to the agreement. The court ruled that this repeated exposure was sufficient to put a reasonable person on notice provided that the information was presented clearly and directly. This case underscores that browsewrap agreements may be enforceable if users are given adequate notice. 

A hybrid approach that combines browsewrap and clickwrap elements can further strengthen an agreement’s enforceability as observed in Zaltz Vs. JDate . Here JDate required users to actively check a box confirming their agreement to the terms of service before joining the site. Although Zaltz claimed she did not recall agreeing to the terms the court upheld the agreement stating that requiring an explicit action provided clear evidence of consent. This case shows how combining passive notice with affirmative user acknowledgement can enhance enforceability.

However, browswrap agreements have significant drawbacks. Courts often disfavour them because they do little to ensure users are actively aware of a website’s policies and terms. Just like in Harris v. Blockbuster Inc. Blockbuster’s agreement stated that the company could modify its terms at any time with or without notice and continued use of the site would imply acceptance of the changes. The court found this problematic as it placed the entire responsibility on users to stay informed without guaranteeing they had meaningful notice.  

The key to enforceability is providing users with clear and reasonable notice of an agreement’s terms. This can be achieved through pop-up notifications, bold disclaimers or requiring affirmative consent rather than relying solely on passive mechanisms like browsewrap agreements.

India lacks a comprehensive legal framework for regulating online agreements and their enforceability is determined on a case-by-case basis using contractual principles. While courts have upheld clickwrap agreements when the terms are clear they have also struck down agreements where one party had significantly more bargaining power

The website owners and mobile app developers should carefully choose how they implement legal agreements to ensure enforceability and compliance. If someone’s business opts for a clickwrap agreement they must ensure that the legal agreement is displayed prominently and is easily noticeable within the website or mobile app. The method of acceptance or rejection should be clear and leave no room for ambiguity. It should state that by accepting the agreement the user acknowledges and consents to the legal contract. If account registration is required users should be properly notified of the legal agreements, they must accept before creating an account and If a checkbox is used for agreement then it must ensure that users cannot proceed unless the checkbox is checked. Clickwraps agreements are becoming the standard in privacy law compliance and are likely to be the only acceptable method in the future.

To ensure the effectiveness of a browsewrap agreement it is essential to utilize technology in a way that actively informs users of the terms and conditions. A large part of responsibility in this agreement lies on buyers mainly when the particulars are reasonable and not hidden in an obscure section of the website.

Yash Bajpai and George Janssen, “Consent Fatigue and Clickwrap Agreements: Is Current Data Consent Law in India Fit for This Purpose?”, SCC TIMES, (June 2024), https://www.scconline.com/blog/post/2024/06/12/consent-fatigue-and-clickwrap-agreements-is-current-data-consent-law-in-india-fit-for-this-purpose/ 

Pameela George, “Legal battles sparked by Digital Contracts: Exploring How Clickwrap Agreements Influence Online Consent and Compliance”, LinkedIn, (July 2024), https://www.linkedin.com/pulse/legal-battles-sparked-digital-contracts-exploring-how-pameela-george-jukne/

 Legal Research Team, Browsewrap Vs. Clickwrap, TermsFeed, ( February 2025), https://www.termsfeed.com/blog/browsewrap-clickwrap/