Social Media Terms of Use Clickwrap or Browsewrap?

Do you use a clickwrap agreement to notify users of your terms of use, or do you simply rely on the users continued use as a manifestation of their intent to be bound by your terms of use? A clickwrap agreement displays the terms of use and then requires the user to click an I Agree or Accept button to affirmatively manifest their intent to be bound by the terms. On the other hand, a browsewrap agreement is typically accessible through a hyperlink at the bottom of a web page and no affirmative acceptance is required by the user. The theory is that with continued use of the website, the user agrees to be bound by the terms of use. If the terms of use of accepted by clickwrap agreement, the E-SIGN Act generally provides that such agreement cannot be denied legal effect solely because the agreement is in electronic form. If the terms of use are passive and you are relying on a browsewrap agreement, the law is unclear and certain terms may not be enforceable. To ensure enforceability of your terms of use, you should consider using a clickwrap agreement rather than a browsewrap agreement. —Nicole J. Harrell