David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.
The Telephone Consumer Protection Act ("TCPA") protects consumers against the receipt of certain unsolicited telemarketing calls, faxes, and text messaging. Businesses that violate TCPA regulations may face lawsuits brought by unhappy consumers. These can get extremely expensive in the case of class actions, which often involve thousands of consumers and multiple violations.
To safeguard your business, before contacting consumers, you will need their prior express consent to do so. Companies that attempt to obtain consent online often do so through use of either a clickwrap or a browsewrap agreement. Please note that the difference between the two types of agreement methods is important from a legal perspective.
Prior express written consent from consumers is required for telemarketers to solicit consumers via automated means to cell phones (and for pre-recorded and artificial voice calls to residential land lines) for marketing purposes. Obtaining express consent, typically through a clickwrap or browsewrap agreement, involves providing consumers with a clear, unambiguous disclosure that explains that:
- They will receive future calls that deliver autodialed telemarketing messages on behalf of a specific telemarketer or advertiser;
- Their consent is not a condition of purchase; and
- They must designate a phone number at which to be reached.
Consent agreements can be collected online or in person. Electronic or digital forms of signature are acceptable, including agreement obtained through email, website form, text message, telephone keypress, and voice recording.
Generally, electronic or digital forms of consent language usually appear towards the end of webpages. These pages typically include a clickwrap or a browsewrap agreement to capture a user's consent. Courts have analyzed the utility of capturing consent by both methods.
Below we offer some helpful tips and solutions to ensure that the consent you obtain online is enforceable and reasonably safe from legal challenge in the event of litigation.
What is a Clickwrap Agreement? What is a Browsewrap Agreement?
A clickwrap agreement is obtained with language directly above the "submit" or "agree" button (ideally with an unchecked check box) presented on the user's computer screen that requires the user to manifest his or her affirmative assent to the terms of the agreement by ticking the check box (and pressing the "submit" or "agree" button).
Generally, courts have found that valid consent is obtained through use of clickwrap agreements because they typically provide "reasonable notice" of their constituent terms and require consumer action. Courts have found clickwrap agreements to be unenforceable where the terms are so unnoticeable that they effectively conceal from the consumer that a specific clause lies within.
A browsewrap agreement is obtained in interactions where a website's terms and conditions are generally posted on the website via a hyperlink at the bottom of the page. Unlike a clickwrap agreement, a browsewrap agreement typically does not require the user to manifest assent to the terms and conditions expressly, and a party instead gives his or her assent simply by using the website. The defining feature of browsewrap agreements is that the user can continue to use the website or its constituent services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists.
Which Agreement is Better for your Business?
Without question, a clickwrap agreement is the preferred method to capture valid user consent. This is because a more definitive and concrete consent is obtained when a user must take an affirmative act, acknowledging that he or she has viewed and agreed to a site's terms and conditions before continuing with a particular transaction.
Under the TCPA, consent trumps all. With it your business is better positioned to combat career litigants. Having a well-placed agreement, preferably clickwrap, where the terms are displayed above the "submit" or "agree" button requiring user interaction to affirmatively agree, provides a distinct advantage when trying to rebuff individual and class TCPA claims.
Despite the distinction, browsewrap agreements may still provide "good" consent when the right circumstances are present. Construction of the website and placement of the browsewrap is of paramount importance to establishing valid consent. Because no affirmative action is required by the website user to agree to the terms of a browsewrap (other than use of the website), the determination as to the validity of a browsewrap agreement often depends on whether the user has actual or constructive knowledge of a website's terms and conditions.
In instances where there is no evidence that the website user had actual knowledge of the agreement, the validity of the browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the agreement.
Whether a user has inquiry notice depends, in large part, on the design and content of the website and the agreement's webpage. Where the link to a website's terms of use is buried at the bottom of the page or tucked away in obscure corners of the website where users are unlikely to see it, courts have refused to enforce such browsewrap agreements.
You Can be Proactive.
Experienced attorneys can help guide and counsel you when it comes to: 1) setting up your website and obtaining proper consent to call and text; and 2) obtaining the consumer's agreement to online terms and privacy policies. Working with the correct legal team will help safeguard your business against career litigants looking to prey on easy targets.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
