Six Ways Site Design Can Potentially Render TOS Agreements Unenforceable

Our recent posts on successful legal challenges to the arbitration clauses in browsewrap and clickwrap agreements have a theme in common—even the most thorough and well-worded agreement can be rendered unenforceable by website design. With this in mind, we have put together a list of otherwise innocuous web design components that can be the bane of both browsewrap and clickwrap alike. Note, failure to pay attention to any one of these will not necessarily render your agreement weightless—many of these are culprits only when grouped together—but they are also each eminently addressable, so why not avoid potential pitfalls in the first place?

1. Naming
It may seem obvious, but the failure to name a link to the “Terms of Use,” using exactly those terms (or something similarly explicit, such as “Service Agreement”), is a sure way to weaken any arguments that the user has been fully informed of assent to those terms. In most cases, naming the link “Printable Version” or even “I Accept” simply won’t suffice. Be explicit.

2. Placement
Conspicuous placement alone will not necessarily sway a court that an agreement has alerted a user to the terms of service (TOS), but it can single-handedly convince a court the opposite is true if done badly. Placement should also consider different browsers and screen sizes. For example, a TOS link that appears on the first page of a home computer may be relegated several “pages” or “scrolls” away on a mobile device.

3. Size
Size matters. Links to Terms of Use must stand out in what is often a sea of words surrounding them, and just as titles and subheads are often made larger to convey relative importance, so, too, can font size help make a TOS hyperlink more conspicuous.

4. Contrast
How much does the TOS link stand out from the both font and background colors? A light green hyperlink on a dark green background could be construed as less visible to the user’s eye, as could a hyperlink color that’s the same as the regular font. Contrast is your friend.

5. Grouping
So, you’ve named your link(s) well. You’ve placed it in a properly conspicuous location and made it distinct from its surroundings in both size and color. But there’s still a way in which all this can be for naught—what other links are in the area? Some courts have viewed the placement of a TOS hyperlink in the same immediate area with other, more generically aimed hyperlinks as de facto camouflage. The TOS link should stand out in all ways possible.

6. Scrolling Windows
As shown in Sgouros v. TransUnion Corp., No. 15-1371 (7th Cir. March 25, 2016), a scrolling window—typically a component of a clickwrap agreement—can bring with it a host of problems. How many lines of the agreement are visible in the initial window? How far down does one need to scroll to reach the relevant terms? Is the user forced to scroll all the way down before clicking acceptance? For any business seeking to forge simple, binding agreements with its users, even one such question may be considered one too many.

As can be seen from above list, whether it be a browsewrap or clickwrap agreement, online retailers and service providers need to be aware of the various elements of website design that the courts have highlighted as important for ensuring consumer notice and confirming assent to the relevant terms. With so much thought and care given to the crafting of a company’s Terms of Use, it would be a shame to let it all be unraveled by things as basic as font, color and placement.