A woman in Missouri failed in her claim that she could not be bound by a website's terms and conditions because the site had not forced her to look at a page with the conditions listed on it.
Those terms and conditions included a stipulation that any dispute arising from use of the site was to be settled in Denver County, Colorado.
Major did not click on the link and, when dissatisfied with the work that was carried out to her home, sued ServiceMagic as well as the contractors.
"[Major] claims the notice of website terms was inadequate and no 'click' was required to accept them," said Judge Nancy Steffen Rahmeyer.
"The legal effect of online agreements may be 'an emerging area of the law,' but courts still 'apply traditional principles of contract law and focus on whether the plaintiff had reasonable notice of and manifested assent to the online agreement'," she wrote, quoting past rulings,
Major said that a previous ruling involving Netscape, a case referred to as 'Specht', backed her case because a court said that terms could not be enforced that appeared only at the bottom of a page with no indication near the top of the page that a user must scroll down to see those terms.
The Missouri Court rejected that argument, saying that Major had plain sight of a notice telling her where to find the terms and conditions.
Major argued that a better method for websites to use was one in which users had to click a button affirming that they had read and agreed to the terms. The Court disagreed.
It said that while it might be desirable that such buttons be used, "there is no fundamental reason 'why the enforceability of the offeror's terms should depend on whether the taker states (or clicks) ‘I agree','" said the judge, again quoting a previous ruling.
"[Major's] contention that the website terms were so inconspicuous that a reasonably prudent internet user could not know or learn of their existence, or assent to them without a 'click', is unconvincing," said the judge.
The case was dismissed from the Missouri Court.
Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM, said that in the UK, there are very few cases on the incorporation of website terms and conditions.
"There isn't much guidance from courts in the UK on website contracts, but we generally advise clients to include a check box that forces users to indicate that they accept the terms and conditions," said Robertson. "The terms should be easy to access via a Iink and any key or unexpected points should be summarised in the mandatory screens of the e-commerce process."
"Most website users don't read the small print and courts will understand that, but as an operator you can take steps to maximise the likelihood that users know what they're signing up to," he said. "In contrast, leaving your terms as an optional link without a check box runs a real risk that a court will say they're not incorporated and therefore they're meaningless," he said.
Editor's Note: We thank Mike Masnick's excellent Techdirt blog for bringing this case to our attention.