Can A Browse-Wrap Agreement Be Challenged In Court?

A browse-wrap agreement is a type of online contract where acceptance of the terms and conditions is implied by the user's use or browsing of a website. While these agreements are generally considered legally binding, they can be challenged in court under certain circumstances. The enforceability of such agreements depends largely on whether the user had a fair opportunity to review the terms and whether the terms were clearly accessible.

Circumstances Under Which a Browse-Wrap Agreement Can Be Challenged

Lack of Notice or Accessibility

If the terms and conditions of the agreement are not clearly visible or difficult to access, the browse-wrap agreement may be challenged in court. Courts typically look for whether the user was adequately notified of the existence of the terms and whether they had an opportunity to review them before accepting.

For example, if the terms are hidden in the footer of the website or buried in an obscure location, the agreement may not be enforceable, as the user might not have had a reasonable chance to become aware of the terms.

Implied Consent and Awareness

In a browse-wrap agreement, the user’s consent is typically implied by their use of the website. However, if the website does not clearly inform the user that using the site constitutes acceptance of the terms, this may affect the validity of the agreement.

If the user can demonstrate that they were unaware of the terms or that the website did not make the agreement clear, they could argue that their implied consent was not valid. Courts may be reluctant to enforce such agreements if the user’s awareness of the terms was not evident.

Unfair or Unconscionable Terms

Unfair terms or hidden clauses that significantly favor one party over the other can also lead to a challenge in court. Under the Indian Contract Act, 1872, agreements that contain terms that are considered unconscionable, fraudulent, or unfair can be void or unenforceable.

If a browse-wrap agreement contains terms that are unreasonably one-sided or contain hidden fees, liability limitations, or other clauses that significantly disadvantage the user, they may have grounds to contest the agreement in court.

Inadequate User Interaction

In many cases, browse-wrap agreements are less enforceable than click-wrap agreements because users may not take any active steps to acknowledge the terms. The lack of an explicit agreement (like a click of I Agree) could be a factor in challenging the enforceability of the agreement.

Courts are more likely to enforce contracts that involve a clear and explicit act of acceptance (such as clicking a button) rather than agreements that rely solely on implied consent.

Legal Precedents in India

Information Technology Act, 2000

The Information Technology Act, 2000 recognizes electronic contracts and provides for the enforceability of browse-wrap agreements. However, the agreement’s validity can still be challenged if the terms are not easily accessible or if the user’s consent is not explicit.

Courts in India have upheld electronic contracts in cases where the terms and conditions were clear and accessible. However, if the agreement was formed under conditions where the user was not fully informed or aware, the courts have ruled against enforceability.

Judicial Approach

In India, courts have typically looked at whether reasonable steps were taken to inform the user of the terms before the user’s use of the site. If the website failed to ensure that the user had a fair opportunity to read and understand the terms, the agreement could be contested.

In one case, the Delhi High Court held that if the terms and conditions of a website are hidden or presented in a non-intuitive manner, the agreement may be deemed unenforceable. This highlights the importance of prominent disclosure of terms in browse-wrap agreements.

Example

A user visits an online retail website and begins browsing products. The website includes a link to the terms and conditions in the footer, but there is no indication that using the site means agreeing to the terms. The user purchases an item, and later encounters an issue with a refund. The terms of the agreement include a clause limiting the seller's liability, but the user was not clearly informed that they had agreed to this clause. In this case, the user could challenge the enforceability of the browse-wrap agreement, claiming that they were unaware of the terms and did not knowingly consent to them.

Conclusion

A browse-wrap agreement can certainly be challenged in court if the user can prove that they were not adequately informed of the terms and conditions or that the terms were not reasonably accessible. Factors such as lack of notice, hidden or unclear terms, and lack of active consent can weaken the enforceability of the agreement. While these agreements are legally valid under the Information Technology Act, 2000, they must still meet the standards of transparency and fairness to be enforceable in court.