BEST PRACTICES REGARDING POSTING TERMS OF USE

November 3rd, 2017

By Maude Papillon, Lawyer and member of BCF's Internet strategic team.

There is currently no specific legislation in Québec on entering into online contracts. We are expected to comply with the general principles of civil law, which essentially provide that to enter into a contract, there must be an exchange of consent, by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person.

Although this is a decision by a court from another jurisdiction, the recent U.S. Court of Appeals decision in Meyer v. Uber Technologies Inc. (“Uber”), offers additional clarification about the best practices that should be adopted to obtain valid consent to online terms of use.

This decision, in which Uber prevailed, illustrates not only the importance of well written and unambiguous terms of use, but also the need to post such information in a highly visible, uncluttered portion of a Web page.

MEYER V. UBER TECHNOLOGIES

Mr. Meyer opened an Uber account using the mobile application. In order to confirm his registration, Mr. Meyer was required to click on the "REGISTER" button in the middle of the payment screen, where the following hyperlink, in bright blue, underlined capital letters appeared: “[b]y creating a Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.” These terms of service included an arbitration clause. When a dispute arose between Mr. Meyer and Uber, Mr. Meyer claimed that this arbitration clause was not binding against him. During the trial, Mr. Meyer argued that he did not recall seeing the said hyperlink and he therefore had not read the arbitration clause and had not consented to it.

USERS DO NOT HAVE TO READ THE TERMS OF USE TO ACCEPT THEM

The Court confirmed that the users of a mobile application are bound by the terms of use if, after receiving a reasonably visible notification regarding these, they voluntarily continue the transaction by clicking on “Register,” or another similar button. This action confirms their consent to the terms of use, whether they read them or not.

In other words, failure to read the terms of use that were available and clearly visible is an inexcusable error and should not be overridden for defect of consent if the user allegedly misled has not taken the necessary precautions beforehand. A user who contracts blindly by registering on a website or a mobile application can not, as a result of his negligence, request the annulment of a clause.

WHAT TO KEEP IN MIND

In light of this decision, businesses should review the acceptance process of their online terms of use. This decision, indeed, provides useful guidelines on the posting of your terms of use and your privacy policy:

  1. Clear up the screen on which user consent is obtained and post a minimum amount of text. When there is an uncluttered screen, a court is more likely to find that a user had a reasonable opportunity to review and consent to the terms of use. The Uber screen that appeared to complete a user’s registration was not cluttered and offered an easy option: the user was required to click on a button marked “Register,” underneath which appeared the words “[b]y creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.”

  2. Avoid creating the need to scroll for the terms of use to appear. The Uber registration page did not require scrolling down to see that the terms of use were binding once the registration was confirmed. Everything was visible all at once.

  3. Notify the user explicitly and clearly by underscoring the notification that by creating an account, (s)he agrees to be bound by the terms of use. The contrasting text of the Uber application – dark printing, white background and bright blue, underlined hyperlink – helped make the terms of use valid and enforceable.

By using these best practices to obtain consent on terms of use online, it is very likely that a court will reject the cancellation of terms of use provisions simply on grounds that a user has not read them and later finds out he does not want to be governed by them.

To summarize, a business is free to dictate the terms and conditions under which it will do business with the users of its website or its application, as long as it offers the user a clear and unambiguous contract and obtains a valid consent. The best advice for a business that wishes to withhold some user rights in its terms of use and ensure that they will be enforceable is to be clear and unambiguous, all in accordance with the requirements of good faith. Subtlety will lead to problems.
How can BCF help you? Our specialists at BCF will be pleased to assist you in drafting your terms of use and your privacy policy and in posting these online.

Maude is a member of the BCF's Internet strategic team, which offers our clients personalized legal information about their presence on the Web, where the continually changing environment creates a need for the expertise of a multidisciplinary team like the one BCF has.