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A federal court has shed some light on when a website’s terms and conditions can be enforced against a registered site user.
Internet users may not always know what they are agreeing to when they access a website. Some types of online agreements are clearer to recognize than others.
For instance, under a clickwrap agreement, users must affirmatively check a box or click an “I agree” button to assent to the terms. Under a browsewrap agreement, users merely navigating a site may be bound to the site’s terms if they are given sufficient notice of those terms, usually via a hyperlink at the bottom of the page.
Not all agreements fit in neatly to one of those two categories, however. Sign-in-wraps, a hybrid of the two, are agreements in which users take an affirmative action to sign up to use the site but not to explicitly agree to the terms.
The case at issue involves a sign-in-wrap found on TopstepTrader LLC, an Illinois-based trading platform that sued an individual for signing up for the site and allegedly copying its content. The U.S. District Court for the Northern District of Illinois April 18 allowed TopstepTrader’s copyright infringement claim to proceed. But before it got there, the court addressed whether it had jurisdiction over the defendant.
TopstepTrader argued jurisdiction was proper because defendant Sattam Alsabah, a Kuwait resident, had agreed to a forum selection clause found in the site’s terms upon registering to use the site.
The court disagreed. Even though a link to the terms appeared next to the “sign up” button, the meaning of clicking that button was unclear, the court said.
Sign-in-wraps are often enforceable when a link to the terms is placed next to the sign-up button, the court said. But in those cases, it said, a notice accompanying the button conspicuously and explicitly tells users that clicking the button signifies consent to the terms.
Nowhere does TopstepTrader’s website “tell a user that clicking the ‘Sign Up’ button indicates acceptance of the hyperlinked Terms,” the court said.
Still, that wasn’t enough to dismiss the case. The court ultimately found it had personal jurisdiction over Alsabah—but not because of the forum selection clause. Alsabah knew he had created an account with a company based in Illinois and could foresee being sued there, the court said.
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