We have noticed at Dozier Internet Law that the latest legal commentary coming from the far left, free speech expansionists who so aggressively oppose any attempts to impose the rule of law (and basic rules for that matter) on netizen misconduct focuses on the illegality of enforcing the terms of a user agreement on those who do not admit clicking on an acceptance button. This is more of the same...trying to come up with reasons why the MySpace suicide conviction must be overturned on appeal. Their arguments ignore any significant legal support for the enforcement of user agreements absent a clear and unequivocal assent, either by the party to be bound or its agent or an independent contractor acting with apparent authority.
But a person is bound by a new "terms and conditions" from a credit card company without signing it.
And a person is bound by the contractual default terms on the face of an invoice received for services rendered even without a written contract.
And closer to the issue, the Courts have been enforcing User Agreements against website visitors as long as the agreement is open and conspicuous, although at least one Judge has required the contract to be "above the fold" on the homepage (whatever that is).
The legal concept that Dozier Internet Law uses most often to support enforcement is either an "implied contract", which sometimes implicates promissory estopple and detrimental reliance, or an "oral contract" for which the Court adopts the written User Agreement terms as the deal. There are also other arguments. In this regard, anyone using the web should fully expect that there are rules governing conduct when that person signs up for a website or uses the password of another to use a website. The message we should be sending out is that if you go out and act inappropriately on the site, expect to be called to account for violations of the site's Terms of Use. It's as simple as that.
And this concept of the enforcement of the User Agreements is another weapon to use as the web pursues self regulation and self policing. The web is not intended to be a lawless Wild, Wild West. It began that way, so it is a struggle to get online misconduct that was acceptable for so many years under control. But I can guarantee you one thing. No matter what the legal basis is for enforcing User Agreements against registrants and even visitors, if for some reason the Courts begin finding that existing legal principles don't allow for the enforcement of these contracts, expect UCITA (the much maligned, anti-consumer "Uniform Commerical Code of the online world") to raise its ugly head again at legislatures all across the country and in Congress. Then the liberal, free speech legal commentators will really have their hands full. A self imposed purgatory of sorts.
And once again at Dozier Internet Law we'll be wondering whether they "couldn't see the forest for the trees". An unfortunate and seemingly recurring theme.
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