Why do so few websites address adblocking in their basic terms and conditions?
1. Visitor acknowledges the website derives income from advertising revenue, and consents to view advertising in exchange for use of website.
2. Visitor agrees that use of an adblocker is outside of acceptable use as defined by these terms and conditions.
Given the massive financial losses caused by adblocking, the slow adoption of legal terms surrounding adblocking is surprising.
Typically, website terms are “agreed to” either by one of two approaches:
- A “Click Wrap” approach requires visitors to click an “I Agree” button after reading the terms.
- A “Browse Wrap” approach simply states something along the lines of, “continued usage of the website constitutes agreement with the terms and conditions”.
Since then, multiple additional court decisions have supported the enforceability of click-wrap agreements.
But that’s not to say that all website terms and conditions are legally enforceable. Some aren’t.
What if you were never forced to click “I agree”?
How binding are ‘browse wrap’ agreements which users are unlikely to even see?
What if the terms and conditions are buried in a link, deep in the page-footer?
Zappo’s users disagreed on the grounds that they had never seen said terms, which were buried deep in the page footer: (See if you can find the link below).
Zappo’s lost the case on the grounds that “No reasonable user would have grounds to click on the Terms”:
The court followed with a more general comment on the fundamental requirements of contracts: (emphasis ours)
Generally, if four requirements are met, a Browse Wrap Agreement should be enforceable.
The requirements are:
1. Adequate notice of the existence of the proposed terms;
2. Meaningful opportunity to review the terms;
3. Adequate notice that taking a specified action manifests assent to the terms; and
4. Action specified in such notice is taken by the user.
Oliver Herzfeld, writing in Forbes, offers the following additional advice:
1. Provide clear and conspicuous notice of all terms;
2. Require counterparties to scroll through to the bottom of the terms and then type in their name in a signature box, click an “I Agree” button or otherwise expressly and actively manifest their assent to the terms;
3. Prohibit any use of the website or commencement of the relevant services prior to such express and active manifestation of assent; and
4. Periodically have counterparties reconfirm their agreement to the terms.
The question is enforceability. And to date (at least to the best of my knowledge), this has never come to court.
Could it be enforced in a court of law?
Would that be enough to be enforceable? That’s for a judge to decide.
Certainly, technological measures like BlockAdblock should be the first line of defense against adblockers, but well publicized legal terms may provide an additional layer of defense.