Merely browsing a website could amount to signing a contract

October 2011 Author: Dominic Dupoy

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The British Columbia Supreme Court recently rendered an important decision regarding the conditions upon which a web user may be bound by a website’s terms and conditions of use. In Century 21 Canada Ltd. Partnership v Rogers Communications Inc., the court ruled that simply browsing a website may result in the formation of an enforceable contract if certain conditions are met. This decision sets an important precedent for all businesses engaged in electronic commerce in Canada.

The facts and the issues in dispute

Zoocasa (a subsidiary of Rogers Communications) operated a website that indexed property listings from a number of real estate websites. Zoocasa’s search engine would access Century 21’s website once a day to copy property descriptions and photographs. These descriptions and photographs would then be posted on Zoocasa’s site along with additional information regarding the neighbourhood.

Century 21 sought an injunction and damages against Zoocasa for accessing Century 21’s website and copying its content without authorization. Century 21’s claim was based on the Copyright Act but also on the terms and conditions of its website that prohibited the use of the website for commercial purposes.

The terms and conditions of Century 21’s website were available by clicking on a hyperlink at the bottom of the home page. These terms were not drawn to the attention of visitors in any active way. Users were not required to click on an “I agree” button in order to access the website’s content. The terms and conditions simply stated that the user was bound by them upon accessing and using the website.

Zoocasa submitted that it was not bound by Century 21’s terms and conditions and that no contract was ever formed between the parties given that users of Century 21’s website were not required to read or agree to the terms and conditions. According to Zoocasa, the terms and conditions were not prominently displayed and constituted an attempt by Century 21 to impose a unilateral contract without acceptance or consideration.

Browse wrap agreements are valid if terms brought to user’s attention

The court dismissed the arguments raised by Zoocasa and, after reviewing Canadian and US decisions dealing with “shrink wrap,” “click wrap” and “browse wrap” agreements, ruled that a valid contract may be formed if (i) the terms and conditions are brought to the attention of the user, (ii) the terms are available for review by the user and (iii) the user has accepted those terms in some manner.

In the case at hand, the court found that the issue of whether the terms and conditions were sufficiently brought to the user’s attention was not relevant since Zoocasa acknowledged that it was aware of them. Moreover, Zoocasa was relying on similar terms and conditions on its own website. As for the acceptance by Zoocasa of Century 21’s terms and conditions, the court made the following statement:

Taking the service with sufficient notice of the Terms of Use and knowledge that the taking of the service is deemed agreement constitutes acceptance sufficient to form a contract. The act of browsing past the initial page of the website or searching the site is conduct indicating agreement with the Terms of Use if those terms are provided with sufficient notice, are available for review prior to acceptance, and clearly state that proceeding further is acceptance of the terms.

The decision of the court does not provide any guidance as to how terms and conditions should be displayed in order for users to be given sufficient notice, absent an acknowledgement of actual notice. The decision does, however, stand as a clear indication that you do not need to click on an “I agree” button to be bound by the terms and conditions of a website in Canada where it can be otherwise shown that these terms and conditions were brought to your attention or that you had knowledge of them.

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