How many times have you updated your smart phone’s software this year — or even this month? Every time you clicked “I Agree,” you were actually signing an electronic agreement known as a ‘click-through agreement.’
Enforceability of click-through agreements
Within the EU, click-through agreements are enforceable; however, the Court of Justice of the EU (CJEU) emphasized that such agreements must take into account general European contract rules, such as those concerning the governing jurisdiction clause (the country in which one of the parties may make a claim in court). In Jaouad El Majdoub v. CarsOnTheWeb.Deutschland GmbH (C-322/14), the question arose as to whether clicking on a separate hyperlink to access the terms and conditions would qualify as a “writing or [an agreement] evidenced in writing” for the purposes of European law. The CJEU reasonably held that as long as there was the possibility of saving and printing the terms and conditions (which should include the governing jurisdiction clause), it was irrelevant as to whether such terms and conditions were made available upon registration or after such registration on the website.
However, in the EU there is the complication that while certain aspects such as the governing jurisdiction clauses are regulated at a European level, certain formalities are still governed by the individual member states and there may be slight variances in approaches towards the enforceability of a click-through agreement. In Italy, for example, the courts have generally accepted click-through agreements, but there was a particular case in 2012 involving eBay, where the Italian court held that certain clauses such as the governing jurisdiction clause must be consented to specifically via digital signature as opposed to simply clicking ‘I accept.’ In Malta, click-through agreements are generally enforceable, if the elements of a contract under Maltese law are satisfied.
Enforceability is great, but what does this mean for users?
For B2B transactions, this is all fine and dandy, because it is assumed that businesses know what they are getting into, but what about individual users who are simply updating their smart phone operating system or purchasing an app? Quick to protect the innocent consumer, the EU Directive on Consumer Rights (2011/83/EC) provides that a consumer may withdraw from an online sales contract within 14 calendar days (extended from seven calendar days, as provided in the previous directive). Note, that this is just one of the many pro-consumer rules established by this Directive in terms of online sales contracts.
Interestingly, this Directive also bans pre-checked boxes, which are typically found on travel service websites that offer additional services such as travel insurance, car rental, etc., after a consumer has purchased a flight ticket. Such services or options are often pre-checked, which means that the consumer could easily purchase additional services without realizing that they are doing so, unless they go through the mundane process of unchecking these options.
Do you agree now?