Terms of Use – No Click Needed!

Browse Wrap Agreements: No Click Needed

by Shaya Silber

A recent decision from British Columbia’s Supreme Court has examined the issue of contract formation and enforceability of a website’s terms of use. According to the decision, simply browsing a website constitutes acceptance of that website’s terms of use.

The case was between Zoocasa, a real estate listing website, and real estate giant Century 21. Zoocasa’s website offered real estate listings as well as additional information on the surrounding neighbourhood, financial tips and so on. Some of Zoocasa’s listings contained listing information such as photos and property descriptions taken from Century 21’s website.  Century 21’s terms of use stated that the site’s content was not to be copied or reused without permission.

The court found that by using Century 21’s website, Zoocasa had agreed to the terms of use. Therefore, Zoocasa’s re-use of the content constituted a breach of the terms of use.

Previous cases such as Kanitz v. Rogers Cable Inc. also examined the issue of whether browse wrap agreements are enforceable. In that case, the court laid out general guidelines for the enforceability of such agreements. In a nutshell, they were:

1. Ensuring that the Terms of Use that are easily accessible to the site’s users
2. Providing clear notice of the terms on the home page. Unless the site’s operator makes reasonable effort to bring the terms to the users’ attention, the notice should require users to review and agree to the terms.
3. Including a button on the home page, where users can click and confirm having read and agreed to the terms.

Zoocasa takes it a step further. Now, simply browsing a website constitutes acceptance of the terms of use.  There is no active acceptance required such as clicking an “I Agree” button. However it’s hard to say whether this rule will apply across the board. For example, if a website’s terms of use binds the user to a financial obligation, a more active acceptance is likely required.

This case is also fascinating from a copyright perspective. A growing trend among websites and aspiring web entrepreneurs is to take information from existing websites and aggregating or reorganizing the information.  The Zoocasa case provides some insight into the feasibility of such a venture.  Before investing time and energy into building an information aggregator, it is important to take some time to review the terms of use on the website(s) that you plan on sourcing your content from. Many of these websites prohibit the reproduction of their site’s content. Unauthorized reproduction is copyright infringement in most cases (unless a fair dealing exception applies).

In any case, if you have any questions about your web business, you should seek individualized legal advice from an internet lawyer.