Digital Contracts

This Article provides an update of cases involving non-negotiated digital contracts, also referred to as “wrap contracts,” during the period of approximately June 1, 2018 to May 31, 2019. Cases decided during the survey period continue to reflect confusion regarding the meaning of the standard of notice-and-manifestation of assent. In particular, they reflect a lack of clarity regarding whether notice refers to the terms of service generally or whether the offeree must have notice of, and assent to, specific terms. Recent cases manifest a developing trend that imposes greater responsibility on drafting parties. Courts are examining successive screenshots, referred to as “webflows” or “flows,” to understand the path a user takes to the terms of service and whether the process of engaging with the website would have alerted the user that a contract was being formed by certain actions. Consequently, more courts are placing an evidentiary burden on the drafting party to prove what the webflow was like at the time the user allegedly viewed the notice, and to prove that the user accessed the website during the relevant period.