A recent US court ruling is a harsh reminder that unless customers are given sufficient notice of changes to online contracts (eg, subscriptions, website terms of use, conditions of sale) the changes will not be binding. The courts in many other countries, including the UK, apply the same notice rule.

Websites frequently attempt to satisfy the notice rule by including the following terms in their online contracts:

  • changes can be made at any time without notice; and
  • customers must regularly check the website for any changes to the contract terms. However, this will not always be sufficient.

A US court recently invalidated changes to an online contract for the provision of long distance telephone calls even though the changes had been made four years previously. When the customer had entered into the original contract he had also authorised regular automatic payment from his credit card. Subsequently changes were made to the online contract by the telco provider without notifying the customer. The court concluded that as the customer had no reason to re-visit the website it could not be assumed that he was aware of the changes. The customer was therefore only bound by the unamended original contract terms. It appears to us to be possible that the UK courts would have reached a similar conclusion.

In the UK, consumers (ie, individuals contracting for non-business purposes) are also given additional protection by the Unfair Terms in Consumer Contracts Regulations 1999. The regulations invalidate "unfair" terms in contracts with consumers. Several recent UK decisions have stated that a seller having the right to make changes without notice is "unfair" and therefore unenforceable. Any changes to such contracts with consumers will only be enforceable if sufficient notice of the changes has been given.

These recent US and UK decisions confirm that if any of the following factors apply:

  • some customers are consumers;
  • some customers will not be visiting the website regularly; or
  • the changes are to key terms or place additional obligations on customers


retail website owners should not rely solely on terms such as those set out above. Instead they should err on the side of caution and take positive steps to alert customers of the changes, eg, via prominent alerts on the website and via individual emails/letters to customers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.