Website Design as Contract

Privacy and Security and Internet

Article Snapshot


Woodrow Hartzog


American University Law Review, Vol. 60, No. 6, pp. 1635-1671, 2011


In contract cases, courts look to a website’s terms of service to describe the terms of the site’s contract with consumers. But design elements like privacy settings have more influence on consumers. Some sites include misleading design elements that deceive consumers.

Policy Relevance

Courts should recognize the important of site design to consumers. Malicious design elements should be enough to invalidate some contracts.

Main Points

  • Courts often enforce agreements that few consumers have actually read.
    • Standard form contracts include provisions such as arbitration clauses and limitations on damages.
    • Online contracts may include consent to spyware or limits on use of the site’s content.
  • Courts often enforce “clickwrap” agreements when the site requires action on the part of the user (such as checking a box), but not “browsewrap” agreements, which do not require the user to show consent.
  • Consent to online agreements is not meaningful, because website users are unlikely to reject contract terms when important services are available only from a single site, such as Facebook.
  • Courts can protect privacy online by understanding that items such as padlock icons or privacy settings amount to promises to keep information secure.
  • Courts should recognize that the use of malicious interfaces like misleading links, disabled back buttons, or pop-ups could make enforcement of a contract unconscionable.
  • One court ruled that placing a link to the site’s policies at the bottom of the page where it was unlikely to be seen meant there was no valid contract between the parties.
  • In privacy cases, courts should consider whether site elements contradict the terms of use, or reduce their clarity.
  • “Operational reality,” that is, the context in which the agreement takes place, can establish an expectation of privacy in spite of the terms of the contract.


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