Agreeing to terms and conditions online

If you’ve ever wondered about the legal status of agreeing to terms and conditions by ticking a checkbox on a web page, here’s some useful advice from Struan Robertson of OUT-LAW.COM.

Disclaimer: We are a web agency, not a law firm. Check with your own lawyers before acting on this!

Generally you don’t need to capture and retain the IP address to prove
that online conditions have been accepted. What’s important is showing
that you have a suitable process in place that maximises the chance of
the person reading and accepting the conditions before the next step -
be it signing up to your service or buying a CD.

A click can seal the contract in all but a few cases - such as house
sales. The important thing is to get the terms and conditions right and
to make sure that they are properly incorporated in the e-commerce
process.

There are two acceptable ways of presenting your terms. Legally, the
best practice is to bring the user to the terms and conditions page as a
mandatory part of the e-commerce process - rather than making it an
optional link. This page would list your terms and conditions with the
Accept button at the end. Few e-commerce sites take this approach
because they don’t want to scare users with a page of legalese - and
they know that few people will read them in any case. The more common
approach is to have the terms and conditions as a link from a line next
to a check box.

If you’re taking the latter approach, include a warning above the check
box that urges the user to read and understand the conditions, something
like this:

Important: You should read and understand the terms and conditions
before agreeing to them and placing your order.

[check box] I accept the terms and conditions

The words “terms and conditions” next to the check box will be a link.
Beneath this check box will be two buttons - something like “Accept” and
“Cancel”. The Cancel button - or an equivalent - is required by the
E-commerce Regulations.

Do not use the words “I have read, understand and accept the terms and
conditions” - 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, as in my example.

The “Purchase Now”, “Buy” or “Confirm” button should only function if
the user has checked the checkbox next to the statement. Do not
pre-check this box by default. Also, do not rely on
client-side validation to ensure that the box has been checked (in case
the user later says his browser doesn’t support JavaScript and he signed
up without having to accept the conditions).

Tom wrote this on 06.03.06 – what do you think?
It's filed in the Interesting, Internet box