A user of dating website True.com is suing the owners of the
site alleging that its offer of free membership to women but not
men amounts to gender discrimination. As part of the case the man,
Michael Cohn, argues that he had not agreed to terms and conditions
when he clicked 'Continue' on the website's registration form when
signing up for a free trial.
True.com's registration form asks for a user's date of birth,
screen name, password and email address. A statement follows the
last field in the form: "I am at least 18 years old, and I have
read and agree to the TRUE Terms of Use and Code of Ethics."
Beneath that statement was a single button marked 'Continue'.
Screenshot of the foot of True.com's registration
page
The website owner, TrueBeginnings LLC, claimed that clicking on
the 'Continue' button represented Cohn's acceptance of the site's
terms and conditions.
Cohn said that he had not been forced to read terms and
conditions and had not explicitly agreed to abide by them.
“The True.com web site did not require me to link to, review, or
agree to any Terms of Use in order for me to register for my free
trial membership; therefore, I did not link to, review, or agree to
any Terms of Use in registering for my free trial membership," he
said in his evidence in the case.
"I did not have to click on any ‘I agree’ icon or button to
register for my trial membership. Nor did I agree to any Terms of
Use that included a choice of law clause or a forum selection
clause," he said.
The issue was important in the case because Cohn wanted it heard
in California. The Terms of Use stipulated that any dispute be
heard in Texas. The Superior Court of Los Angeles County had sided
with True.com and dismissed the case in California. Cohn
appealed.
The Californian Court of Appeal said that there was no reason
why Cohn should not have been considered to have entered into an
agreement with True.com. That was also the decision to which the
first court had come.
"Under these circumstances, where appellant obviously had access
to the internet and was entering into a contract on the internet,
there was nothing inherently unfair in requiring him to access
contractual terms via hyperlink, which is a common practice in
internet businesses," it said. "The trial court did not abuse its
discretion in finding that appellant agreed to the forum selection
clause contained in the Terms of Use."
The ruling is contrasted with other US decisions on 'Agree'
buttons in BNA's
TechLaw blog.
BNA Managing Editor Thomas O'Toole concludes: "I guess it
doesn't matter what the button says, so long as the user is on
notice that clicking the button indicates agreement to a contract
that has been mentioned – but not necessarily displayed – prior to
presentation of the button."
"It's nice to use an 'I agree' button," he adds, "but you don't
have to."
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.
"We always recommend a check box as an absolute minimum," said
Robertson. "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," he said.
"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," he added.
Robertson said that check boxes should not be pre-ticked, and
that a website operator must be careful not to put words into a
users'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," he said.
The ruling in the Cohn case will not alter UK law and may not
even affect the way other US courts decide such issues, though it
could influence how stringently web publishers apply guidance.
