In the world of online terms of service agreements, there are two types of agreements that companies use: browsewrap agreements and clickwrap agreements. While clickwrap agreements require users to actively consent to the terms by clicking an “I Agree” button, browsewrap agreements automatically bind users to the terms simply by using the website or app. These types of agreements have been a common practice in Canada, but there are some concerns over their enforceability.
Browsewrap agreements are generally used by companies to avoid the hassle of having each user actively consent to the terms. Instead, they place a link to the terms of service somewhere on the website, and it is up to the user to seek out and read the terms. The issue with this method is that there is no clear indication that the user has actually agreed to the terms. This can lead to disputes between the company and user over the enforceability of the agreement.
In Canada, there have been several cases where browsewrap agreements have been challenged in court. The most notable case was the 2017 decision in Century 21 Canada v. Rogers Communications, where the court found that the browsewrap agreement used by Rogers was not enforceable because it was not clearly brought to the user’s attention.
The court found that the agreement was buried in a section of the website that was not easily discoverable, and that the language used to alert users to the agreement was not sufficient. The court also found that the fact that the user had to scroll down to find the agreement made it less likely that they would actually read it.
This decision has important implications for companies in Canada that rely on browsewrap agreements. To be enforceable, they must ensure that the agreement is clearly brought to the user’s attention and that the language used is easy to understand. They should also ensure that the agreement is easily accessible and that users do not have to go through several pages or scroll down to find it.
In conclusion, while browsewrap agreements are a common practice in Canada, companies need to be mindful of the legal implications of using them. To avoid disputes and ensure that the agreements are enforceable, companies should make sure that they are clearly brought to the user’s attention, easy to understand, and easily accessible. By doing so, they can avoid legal challenges and ensure that their users are bound by the terms of service.