Terms of service – you need them on your site and we lawyers love them. Having said this, what percentage of consumers actually read terms of service? The answer is undoubtedly an appalling low number, which has legal ramifications.
I’m a lawyer. I write terms of service for sites for a living. Despite this, I rarely read the terms of a site I visit unless there is some compelling reason. If I am not reading them, then one has to imagine that consumers almost never have a go at doing so. This assumption is so accepted that it has a legal impact on whether the terms of a site are considered enforceable by the courts.
The dominant method for quoting terms to visitors to a website is to create a link at the bottom of the site like you see on this site and millions of others. This is known as a browsewrap agreement. It is also difficult to enforce in court for the very reason you asked the question leading you to this article – people don’t read them!
For this approach to be valid, a site must be able to show the consumer had “constructive notice” of the terms. This is proven by showing they visited the terms page by tracking their conduct. Yes, this is pretty difficult to do and courts usually rule against sites.
Is there a solution to this problem? Yes. The solution is for a site to use a clickwrap agreement. With a clickwrap agreement, the consumer is required to click a box indicating they agree to the terms. If this is done, the court will usually bind the consumer to the indicated terms.
So, does this mean most consumers go and read the terms? No. Most people just click the box and move forward into the site. Why will the court then enforce the terms? By forcing the consumers to click the box, the visitor is given constructive notice there are terms. At some point, it is up to the consumer to make at least a token effort to know what they are agreeing to. This is that point.
As mentioned previously, I have browsewrap terms at the bottom of this site. Why is this if the terms are not enforceable? Well, this is not a membership site so there really is no way to force visitors to click a box agreeing to the terms. Even though a browsewrap is probably not enforceable, it still serves a prophylactic purpose. People expect to see them, particularly on a lawyer’s website. Of course, I also have a “hear a yodel” page as well, so you can see how seriously I take those links on the bottom of the site.
What percentage of consumers read the terms of service on a website? Very few. Does this have legal ramifications? Yes. A commercial website needs to make sure it takes this into account by using site documents and processes that will bind the consumer.
If you have a site and are concerned about your terms of service, feel free to contact me.
Richard A. Chapo, Esq.