contract-law
Are browsewrap terms of service enforceable?
<p>Suppose I have a store, and on the farthest wall from the entrance, I have an inconspicuous door with a very small sign labeled &quot;Terms and Conditions&quot;; behind that door is a document saying &quot;By entering this store, you agree to not take photographs inside, or pay us $1,000 per picture.&quot; (Assume it is otherwise legal to take photos in the store and this is the only notice that doing so is not allowed.) Obviously, this doesn't make any sense and is unlikely to be enforceable; you cannot reasonably know about it before entering, and most shoppers could probably shop for hours without seeing it. If someone actually read it, or noticed the door's label and chose not to open the door and read the agreement, then it might be enforceable, but few people will.</p>
<p>However, many Web sites (including Stack Exchange) do exactly the same thing. The terms of service are hidden behind a tiny link in the footer, where few viewers will ever see it. Is this enforceable?</p>


<p>Generally browse wrap terms of service have been upheld if they not unconscionable or entirely unforeseeable.</p>
<p>The case law recognizes that it must be possible to see the link to the ToS and has ruled out some instances where it is very hard indeed to find, but the cases where that has been held have been very extreme (e.g. a 6 point font in navy blue v. a black background in an obscure corner).</p>
