Internet Attorney Discusses Enforceability of Website Agreements:
We are often asked how courts are handling contract issues on the internet. Unfortunately, there is little precedent to guide lawyers or courts in the handling of internet agreements. Here are some common defenses which consumers will raise in order to avoid a particular contract term:
- A website visitor can argue that there is a failure of contract due to mutual assent;
- The entire contract or any specific contract term may be unconscionable as a browsewrap or clickwrap “contract of adhesion” that is unduly one-sided;
- The terms of service may violate consumer protection laws or unfair business practice statutes;
- The terms of service could be struck down as a violation of public policy outright under several theories relating to consumer oppression, protecting privacy rights or other policy considerations.
From the consumer’s side, just because a terms of service or privacy agreement says “you lose”, doesn’t necessarily mean the will enforce that particular provision.