E-Commerce Laws and Regulations - Essay Example

An e-tailor (e-service provider) may opt that the agreement for the supply or sale of services or goods is regulated by his typical conditions and terms. To be legally enforceable, these conditions and terms should be integrated into the online contracts by making them to the awareness of the client at the time or before the agreement comes into force. If the typical conditions and terms are not correctly included, in case of any disagreement, the court will take into recognition the conditions to oversee the agreement footed on earlier track of dealing or on the statute which could be offering less beneficial or lucrative to the e-tailor (e-service provider).

The mere inclusion of conditions and terms on a website is not adequate to include them in the agreement. Both the parties to the e-contract should agree to such an e-contract on the expressed terms. There are three chief courses available in which terms and conditions may be incorporated into a website for the benefit of users and incorporated into the contract, and they are “click-wrap”, “browse-wrap”, and “web-wrap” even though the distinction between these courses may not be especially clear-cut in real practice:
- “Browse-Wrap” connotes that the conditions are reachable through a hypertext link.
- “Click-wrap “connotes that constructive consent to the exhibited terms, for instance, by clicking an “I agree” button is needed. Under this, a customer is required to roll through the conditions before clicking “I accept” and then continuing with such business.
- “Web-wrap” connotes a notice trying to make an entry into and further use of website conditions posted under “terms & conditions.” Under this, there will be a hyperlink within a phrase with words to the cause, “By ticking on the “I accept” icon, the customer acknowledges that he has read and acknowledged the conditions and terms.

By comparison with past court cases concerning the integration of conditions into an e-contract, it is possible that a competent court would arrive at a conclusion that the inclusion of either the second or third condition as mentioned above will be valid as the content and existence of the conditions are brought to the notice of the client before the formation of any e-contract and hence, it would be bonding on the part of the customer.

However, the first option mentioned above may be held to be invalid. Despite not pinpointing the English courts’ approach, US courts have held that a “click-wrap” agreement is a valid one while holding that plain mention to the conditions and terms as a computer-link like the first choice mentioned above or by employing a browse-wrap facility, could not be adequate to integrate conditions and terms as in such a type of e-contracts, customers are not warranted to read the terms of the e-contracts before ordering.

In William v America Online Inc, the plaintiff claimed that the installation of online software provided by the defendant had resulted in unauthorized changes to his computer. AOI attempted to rely on a jurisdiction clause which consisted in its terms of service agreement.  However, the plaintiff produced an expert opinion to demonstrate that the changes to the computer were made at the start of the installation process before he had the chance to acknowledge the terms of the agreement. Thus, the Massachusetts court declined to dismiss a claim against AOL footed on its choice of forum provision in its click-wrap terms of service agreements with its members.

Browse-Wrap is an agreement corroborated by the simple fact that one party browsed through the other party’s website. Under this, the owner of the site will put a general notice that “those who browse through this site will be taken as having accepted the following terms” and the debate is that indulging in browsing through the website in the face of the notice is tantamount to an agreement.

The UK retailer GameStation contemptuously included an “immortal soul “clause to their online contracts in 2010, and this advertisement gained vast publicity later when it arrogated that it “lawfully owns the spirits of its thousands of online shoppers”. It is to be noted that the provision of a non-enforceable clause cannot be enforced in any court of law. It was claimed by the GameStation that this funny advertisement demonstrates that about 90% of online shoppers do not view the conditions and terms at all.

A browsewrap agreement is one, which implies that the user accepts the conditions and terms of the website which they are visiting. Under the normal rule, it can be implemented only if the user ascents to it or when there is a possibility that the visitors are aware of the conditions and terms of the website they are visiting.