Your Website Terms and Conditions is a Contract

James Chiodo, Certified Information Privacy Professional CIPP/US

When a customer or user to your website or blog agrees to your Terms and Conditions, a legal contract has been created between you and them. Because the customer or user has “signed” the contract (Terms and Conditions) by clicking “I agree,” the courts consider the Terms and Conditions enforceable.

What if there is a Terms and Conditions but with no “I agree button”?

Many websites and blogs that have a Terms and Conditions posted do not require the customer or user to click on “I agree” before using the site or making a purchase. This is not the ideal way to protect yourself when doing business online. The courts are considerably less likely to enforce your Terms and Conditions without having a user or customer click on or check some type of “I agree” to the Terms and Conditions.

Specht vs. Netscape 

In this case, the court said when users were invited to download the free software; the website did not have a plainly visible notice of the terms of use and license. Instead, visitors and users would have to scroll down the page, below where the download button was, and click on a link to view the agreement.

The court explained the contractual nature of website Terms of Use is not apparent to all users.

The court determined that a submerged link, below the fold of the page, was not adequate to make the consumer aware of the license terms. The court further stated that “a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to Netscape’s invite to download the free software.”

Although there are cases where the courts upheld a website Terms of Use where the user did not have to click “I agree” It would be very unwise to count on it. In the case of your arbitration provision, it will probably never get enforced without the user or customer clicking on “I agree” to your website Terms of Use.

Past court decisions (and the law) strongly suggest that you should post your Terms of Use in a clear and conspicuous place on your website or blog to improve the chances of it being enforced. See our blog post at

California’s common law best summarizes this concept:

California’s common law is clear “an offeree, regardless of the apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious.


 What This Means to You

As to the current state of the law, the following applies to almost all Federal and State laws concerning website terms and conditions, disclaimers, disclosures and privacy policies.

That is, these important documents need to be “clear and conspicuous,” without defining exactly what that is. However, the general definition given by most federal and state regulatory agencies is that the language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.” At a minimum, it should be at least the same size font as the surrounding text.

So all the above can be condensed down to this: Your policies should be posted in a “clear and conspicuous,” position on your website or blog. Posting your policies and disclaimers at the bottom or footer of your site in a smaller font is like not having any policies at all.

With the ever-changing Internet laws, court decisions are filled with exceptions. Each court case is judged on its own facts and set of circumstances. As a website or blog operator, your goal should be to reduce your risks and liabilities with attorney-drafted documents posted properly on your site.


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