I Didn’t Click Accept”: The Enforceability of Scroll-Wrap and Browse-Wrap Agreements in Modern E-Commerce

In the hyper-digitised landscape of modern commerce, contract formation has undergone a silent yet profound transformation. Traditional contract law, built upon the bedrock of mutual assent, a clear offer and acceptance, and an exchange, assumed a physical or verbal exchange. Today, this assent is often sought via digital mechanisms, ranging from explicit checkboxes to passive website usage. While the Click-Wrap Agreement (requiring an explicit “I Accept” click) is generally upheld by courts due to its clarity, a significant and increasingly litigated challenge lies in agreements where assent is merely inferred from a user’s digital actions: the Browse-Wrap and Scroll-Wrap Agreements. These mechanisms attempt to establish contractual relationships without a distinct, affirmative action from the user, giving rise to what can be termed the ‘Phantom Contract’, a set of terms legally binding the user, yet scarcely acknowledged by them.

This analysis delves into the enforceability of these implied assent contracts under current jurisprudence, examining the crucial judicial standard of conspicuousness and the resulting legal burden placed upon e-commerce providers to ensure fair notice.

The Spectrum of Digital Assent

Digital agreements exist on a spectrum defined by the clarity and proximity of the assent mechanism to the terms themselves.

1. Browse-Wrap Agreements: The Quiet Contract

A Browse-Wrap agreement is positioned at the least enforceable end of this spectrum. Here, a website or application posts a link to its Terms of Service (TOS), often in the footer or a separate ‘Legal’ section, and asserts that by simply using the site or application, the user agrees to be bound by the terms. Crucially, no distinct action is required to acknowledge or access the terms; mere site navigation is deemed sufficient.

The Legal Hurdle: The primary legal challenge to Browse-Wrap enforceability centres on the doctrine of notice. Courts consistently rule that assent cannot be inferred if the user did not have inquiry notice, a reasonable person would not know to look for the terms, or actual notice of their existence.[1] If the TOS link is obscure, placed below the fold, lacks visual distinction (e.g., same font, colour, and size as surrounding text), or is far removed from the action that triggers the contract (like making a purchase), courts often find the agreement unenforceable. This aligns with the fundamental principle that a party must know the terms to which they are purportedly agreeing. The judicial scrutiny here is high, placing a significant burden on the service provider to demonstrate that the user was objectively aware of the terms.

2. Scroll-Wrap Agreements: The Forced Engagement

The Scroll-Wrap agreement presents a more complex scenario. In this mechanism, the user is presented with the terms of service, often in a dedicated box or window, which they must scroll through, sometimes entirely, before the “I Accept” or “Continue” button is enabled for clicking. This design forces a level of visual engagement with the terms, even if the user does not actively read the content.

The Legal Strength: Courts tend to view Scroll-Wrap agreements more favourably than Browse-Wrap because the required action of scrolling provides a stronger, though still implied, acknowledgement of the terms’ existence.[2] The fact that the user must physically interact with the contract text, even by merely scrolling to enable a button, bolsters the argument for assent. However, this is not an ironclad defence. Scroll-Wrap agreements are still vulnerable to challenge if the design is deemed manipulative—for instance, if the key terms are obscured, the process is rushed, or the language is misleading. The presence of the terms must be sufficiently clear and unavoidable to satisfy the standard of conspicuousness.

The Conspicuousness Standard: A Judicial Litmus Test

The enforceability of both Browse-Wrap and Scroll-Wrap agreements hinges almost entirely on the court’s interpretation of conspicuousness.[3] This standard requires the e-commerce provider to ensure the terms are presented in such a way that an ordinary, reasonably prudent internet user would know they exist and that their actions constitute agreement.

Key factors assessed by courts include:

• Location and Placement: Are the terms displayed prominently on the screen prior to the transaction or site use? Is the reference to the terms located in a place where users are accustomed to seeing important information?
• Visual Presentation: Is the hyperlink to the terms in a contrasting colour, bolded, or a larger font than the surrounding text? The greater the visual contrast, the stronger the argument for conspicuousness.
• Repetition: Is the user reminded of the terms at multiple stages of interaction, particularly at the point of making a final purchase or creating an account?
• Functional Necessity: Did the user have to perform a distinct, unavoidable physical action (like scrolling a window or clicking a link adjacent to the ‘Purchase’ button) that directly referenced the terms?

Recent case law emphasizes this point. Courts are actively penalizing companies that attempt to exploit the psychological impulse of users to quickly bypass long legal texts. The judicial tide has shifted toward protecting the consumer by demanding that websites employ clear, unambiguous methods to secure consent, prioritizing fair notice over the convenience of implied assent. The legal burden is firmly on the shoulders of the drafter to prove that the terms were, in fact, presented in an unambiguous manner.

Implications for Legal Practice and E-Commerce

The ongoing ambiguity surrounding Browse-Wrap and Scroll-Wrap agreements carries significant practical implications for the legal industry and digital businesses alike.

1. Risk Mitigation for Businesses

For e-commerce companies and application developers, relying solely on Browse-Wrap agreements is an unnecessary legal gamble. The risk of future litigation over lack of assent, potentially invalidating key clauses like dispute resolution or warranty disclaimers, is substantial. The cost of defending a class-action suit over an unenforceable TOS far outweighs the cost of implementing a technically sound Click-Wrap mechanism. While Scroll-Wrap offers a better definition, it must be meticulously implemented to ensure that the user has a functional reason to scroll, such as unlocking the next step, rather than simply presenting a vast block of text.

2. The Future of Consent

As technology evolves, so too will the methods of soliciting assent. Future legal challenges may focus on voice-activated contracts or those formed through biometric data. Regardless of the medium, the foundational legal principle remains: assent must be knowing and voluntary. The shift in jurisprudence signals that the law will continue to apply pressure on companies to adopt methodologies that prioritise transparency over obfuscation.

Conclusion: A Call for Digital Contractual Transparency

The debate over the enforceability of Scroll-Wrap and Browse-Wrap agreements is a crucial flashpoint where old contract law meets the new digital reality. The increasing judicial scepticism toward these passive forms of assent serves as a clear mandate: conspicuousness is not optional; it is the cornerstone of enforceability.

While consumers must remain vigilant about the terms that govern their digital lives, the legal system is actively placing the primary burden on those who draft these ‘Phantom Contracts.’ The message is unequivocal: mutual assent in the digital age requires clear, unambiguous action, demanding that businesses retire the subtle scroll and embrace transparency to secure contracts that are genuinely, and demonstrably, agreed upon.

[1] Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002)

[2] Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017)

[3] Milgram L, “Uniform Commercial Code (UCC),” Managing Smart (1999) <https://doi.org/10.1016/b978-0-88415-752-6.50017-5>