Transcript Slide 1

KEY COMPONENTS OF WEB
SITE TERMS OF USE AND
ISSUES OF MUTUAL ASSENT
AND ENFORCEABILITY
Lucille M. Ponte
Associate Professor of Law
Florida Coastal School of Law
[email protected]
Prof. Ponte wishes to acknowledge and thank Miles
Weeks Mader, Research Assistant and Candidate for
JD in 2010, Florida Coastal School of Law, for his
research efforts on this project.
KEY COMPONENTS OF WEB
SITE TERMS OF USE
USER-RELATED TERMS
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Eligibility to Use Site
 Age/Geography
Use Restrictions
 Codes of Conduct
 Monitoring/Account
Termination
Boilerplate Provisions
 Indemnification
 Limits on Liability
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Third Party Links
Choice of Forum/Law
OWNER-RELATED TERMS
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Scope of Agreement
 Future Amendments
Site Ownership
 Limited License to Use
 Reserving IP Rights
 Deep Linking, Bots
Privacy Policy
 Data Collection, Use,
Retention
Warranties and/or
Disclaimer of Warranties
COMMON LEGAL CHALLENGES
TO TERMS OF USE
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CLICKWRAP VS. BROWSEWRAP
 Issues of Assent - Actual or Constructive Notice
 Consumers vs. Commercial Entities/Competitors
LACK OF MUTUAL ASSENT - Specht
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Placement of Text Box/Link
Language on Web Page regarding Terms of Use
Opportunity to Review Terms before Assent - Scrolling
Requiring Affirmative Assent (“I Agree”/”I Don’t Agree”)
Opportunity to Discontinue Use or Seek Refund Upon Review of
or Notice of Change in Terms of Use
MIXED OUTCOMES IN ONLINE CASES
DEPENDING UPON STATE LAW/PRECEDENT
EXAMPLE OF DIALOG BOX
Google Images, image available at www.quark.com/.../qla/installing_qla_mac.html
COMMON LEGAL CHALLENGES
TO TERMS OF USE
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PUBLIC POLICY
Contrary to Constitution, Statute, Judicial Precedent?
 Consumer Protection Laws.
 State Views on Class Action Proceedings.
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UNCONSCIONABILITY
Equitable Principles/Good Faith & Fair Dealing
Procedural – Integrity of K Formation/ Negotiation
Substantive – Fairness of K Terms
 Unfair surprise? Oppressively harsh/one-sided?
MIXED OUTCOMES IN ONLINE CASES DEPENDING
UPON STATE LAW/PRECEDENT
BRAGG V. LINDEN
(ICC ARB. CLAUSE – CA LAW)
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Pro. Unconscionable
K of Adhesion/Not Negotiable.
No Reasonable market alternatives.
Arb. clause buried in fine print.
Sub. Unconscionable
 Harsh, one-sided terms.
 Excessive costs of arbitration/fee-sharing.
 Venue intended to shield Linden from liability.
Confidentiality clause results in uneven playing field.
 No showing of legitimate business need.
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