As digital platforms continue to dominate commercial, social, and personal activity, users are increasingly required to accept terms of service before engaging with a website or application. These agreements, often embedded in the online user experience, come in various formats, from clickwraps requiring active confirmation to browsewrap relying on passive usage. While these contracts are often long, technical, and rarely read in full, their enforceability can significantly impact both consumers and businesses.
Courts across jurisdictions scrutinize how these contracts are presented, how users provide consent, and whether they meet foundational principles of contract law. In particular, the strength of enforcement often depends on whether consent was explicit or implied. Comparing their enforceability in Massachusetts, California, the United Kingdom, and Japan, this article provides practical insights for businesses operating across borders and seeking to secure user consent that courts will uphold.
Types of Online Agreements
Clickwrap agreements require users to actively consent to a website's or application's terms of service by taking an affirmative action, such as clicking an "I agree" button. This explicit consent mechanism ensures that users are clearly presented with the terms and must acknowledge them before proceeding, making clickwrap agreements highly enforceable in court.1 Because user consent is both visible and verifiable clickwrap is considered the gold standard for electronic contracts, particularly in regulated industries where clear consent is legally mandated.
Browsewrap agreements, by contrast, rely on implied consent, typically assuming a user's acceptance of terms simply through continued use of a website.2 The terms of service are usually accessible via a hyperlink placed inconspicuously in a footer or sidebar, without requiring any affirmative user action. As a result, browsewrap agreements are more vulnerable to legal challenge, especially if the terms are not prominently displayed or if users are unlikely to notice them.1 While they may be suitable for low-risk or informational websites, their enforceability is often uncertain and heavily dependent on how conspicuous and accessible the terms are.
Comparison Across Jurisdictions
United States: Massachusetts and California
In the United States, both the ESIGN Act3 and the Uniform Electronic Transactions Act (UETA)4 confirm that electronic contracts are legally valid. However, enforcement still hinges on meeting basic contract principles: offer, acceptance, and mutual assent. Courts in Massachusetts and California have consistently emphasized that clear presentation of terms and affirmative user action are necessary for enforcement.
Massachusetts and California are much more accepting of Clickwrap agreements. Courts have routinely upheld their enforceability when the process for assent is clear, the terms are accessible, and the user takes affirmative action. California courts emphasize conspicuous presentation and users' reasonable or constructive notice of the terms, detailed in Doe v. Massage Envy Franchising, LLC.5 Similarly, Massachusetts courts apply a two‑pronged test of reasonable notice and reasonable manifestation of assent, detailed in Kauders v. Uber.6 When these standards are met, both jurisdictions uphold clickwrap agreements, making them a reliable method for businesses seeking enforceable consent.
California courts are particularly strict regarding browsewrap agreements. They often refuse to enforce terms that are not clearly and conspicuously displayed. In Long v. Provide Commerce, Inc., the court found the terms unenforceable because the hyperlink was insufficiently prominent and blended with the background.7 California courts typically require both notice and affirmative assent, and they emphasize visual conspicuousness and the user's actual or constructive knowledge of the terms. Massachusetts takes a slightly different approach. While also skeptical of browsewrap, its courts are somewhat more receptive to hybrid models such as sign-in-wrap or scrollwrap agreements, where users take some action like logging in, but not necessarily clicking "I agree." Comparably, in Ajemian v. Yahoo! , the Massachusetts Supreme Judicial Court refused to enforce Yahoo's terms of service, finding there was insufficient evidence that the user had notice of the terms.8 Courts in Massachusetts emphasize reasonable expectations and procedural fairness, and they are more willing to examine contracts of adhesion for substantive fairness.
United Kingdom:
Electronic contracts are fully recognized under English law, as established by the Electronic Communications Act 2000 and European-driven eIDAS Regulation.9 Digital signatures and electronically concluded agreements are generally valid, provided they meet the basic requirements of contract law: offer, acceptance, consideration, and intention to create legal relations.
Clickwrap agreements have high enforceability in England.9 10 In Parker-Grennan v Camelot UK Lotteries Ltd, the Court of Appeal upheld the use of clickwrap procedures for the National Lottery's online platform11. The court emphasized that clear, accessible terms and an explicit agreement process mean such terms are enforceable.11 The courts' reasoning is rooted in traditional contract principles: a party that actively accepts terms cannot later claim ignorance, provided the terms were straightforward and reasonable. Browsewrap, however, is treated with skepticism. Unless users had actual or constructive knowledge of the terms or the terms were clearly and conspicuously displayed, courts may refuse to enforce the agreement, especially if the terms disadvantage the consumer.
Japan:
Japan, too, acknowledges electronic contracts through its Civil Code and the Act on Electronic Signatures and Certification Business.12 Electronic signatures carry the same legal power as handwritten ones for most contract types, with exceptions for a few statutory documents.
As in England, clickwrap agreements are routinely enforced so long as it is evident that: the user actively indicated assent (e.g., clicking "agree") and the terms were presented in a clear and accessible manner.12 Japanese law emphasizes the principle of free evaluation of evidence, so contractual assent is rarely disputed where platforms can document the user's click or other explicit confirmation.
Browsewrap agreements are also used in Japan. Their enforceability depends on similar factors to England, such as the terms needing to be set out reasonably noticeable and understandable, as well as presented in a clear and obvious format. 12 If strong evidence of notice is absent, the enforceability of browsewrap contracts in Japan is less certain, particularly where consumer rights might be at stake.
Best Practices and Recommendations
As courts continue to evaluate the enforceability of digital contracts, the method by which consent is obtained has become just as important as the content of the agreement itself. Clickwrap agreements are the most reliable form of digital contracting, whereas browsewrap agreements, while sometimes convenient, carry significant legal risk if not properly designed and presented. To ensure the enforceability of online agreements across these jurisdictions, businesses should prioritize clickwrap mechanisms. This approach not only provides clear evidence of consent but also aligns with international data privacy and consumer protection standards such as the GDPR, HIPAA, and the CCPA. International platforms should adopt a standardized clickwrap process that includes clear, readable terms; a requirement to affirmatively consent; and backend systems that document user acceptance. Special attention should be given to consumer-facing products and services, where courts apply heightened scrutiny. For websites that still employ browsewrap terms, enhancing visibility through banners or pop-ups and recording user behavior can help but does not guarantee enforceability.
Footnotes
1 Secure Privacy. (2024, June 20) Clickwrap vs Browsewrap Agreements: Understanding Enforceability & Legal Considerations. https://secureprivacy.ai/blog/clickwrap-vs-browsewrap-agreements-understanding-enforceability-legal-considerations.
2 Practical Law UK. Click-Wrap, Browse-Wrap, and Sign-In-Wrap Agreements. https://uk.practicallaw.thomsonreuters.com/w-013-6228?transitionType=Default&contextData=(sc.Default)&firstPage=true.
3 Fdic.gov. The Electronic Signatures in Global and National Commerce Act https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/documents/10/x-3-1.pdf
4 Uniform Law Commission. Electronic Transactions Act. https://www.uniformlaws.org/viewdocument/final-act-21?CommunityKey=2c04b76c-2b7d-4399-977e-d5876ba7e034&tab=librarydocuments#:~:text=Final%20Act&text=Please%20accept%20the%20terms%20of,areas%20of%20state%20statutory%20law
5 California Lawyers Association. (2023, July). Selected Developments in Business Law. https://calawyers.org/business-law/selected-developments-in-business-law-internet-law-and-practice-in-california-5/
6 Justia. Kauders v. Uber Technologies, Inc. https://law.justia.com/cases/massachusetts/supreme-court/2021/sjc-12883.html
7 Justia. Long v. Provide Commerce, Inc. https://law.justia.com/cases/california/court-of-appeal/2016/b257910.html
8 Boston Bar Association. (2018, February 2). The Internet and the Afterlife. https://bostonbar.org/journal/the-internet-and-the-afterlife/
9 GOV.UK. (2019, September 3).Electronic Execution of Documents. https://www.gov.uk/government/publications/electronic-execution-of-documents.
10 LawEls. (2023, March 28). Electronic Contracts: What Are the Criteria for Enforceability of Click-Wrap Agreements in the UK?. https://lawels.com/en/electronic-contracts-what-are-the-criteria-for-enforceability-of-click-wrap-agreements-in-the-uk/.
11 Law 360. (2024, March 25). 1st Appellate Ruling On Digital Terms Sets Tone For Disputes https://www.cov.com/-/media/files/corporate/publications/2024/03/1st-appellate-ruling-on-digital-terms-sets-tone-for-disputes.pdf
12 OneSpan. (2020, November) eSignature Legality in Japan. https://www.onespan.com/resources/esignature-legality/japan.
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.
