Website operators function in a risky legal environment for liability. All web operators, especially for commercial websites, have a constant influx of users either purchasing products or merely visiting their webpages. All these web operators have duties to the rights of their users. Those duties can include adhering to online privacy laws, consumer laws, or general duties of contract.
Clickwrap and Browsewrap Agreements
Second, are “browsewrap” agreements. These create the majority of problems regarding enforceability. Browsewrap terms are given to users via a link on the webpage (usually at the bottom of the page). When courts have to enforce these terms they look to whether the user had actual or constructive notice of the terms. (Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014)). The courts will inquire into details like the size, font, color, and location of the link to determine if the user knew or should have known about the terms. (Long v. Provide Commerce, Inc., (2016) 245 Cal.App.4th 855). The user’s own experience with the website and knowledge may be questioned as well. This is the reason these terms should be drafted carefully – to avoid the unpredictable results of litigating over the facts of a particular website and the user’s knowledge of the site.
Designing Your Webpage