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Tech & Sourcing @ Morgan Lewis


Getting your clients to accept legal advice that could impact the user experience on a website is an uphill battle, but is the tide of that battle shifting?

Certainly, some lawyer, somewhere, two decades ago, had a knock-down, drag-out with his Web development team about how important it would be to obtain a “seasonable expression of acceptance” (yep, just broke out the Uniform Commercial Code on this blog) to ensure that the company website’s Terms of Service and Privacy Policy would remain enforceable. He lost.

In the brief history of the Internet, websites have been dominated by the “shrink wrap” acceptance mechanism for Terms of Service and Privacy Policies. That is, users who visit the sites don’t have to do anything particular to accept these agreements, but instead accept these agreements by virtue of their visitation. Although courts have been willing to enforce these documents to the extent that they are reasonable and not too invasive, trying to enforce anything other than cursory protections is risky at best.

Recent advances in website interface technology, coupled with the increased attention to (and liability for violations of) privacy and security, have led some major websites to reconsider this approach.

Enter what we here at Morgan Lewis have coined the “Noticewrap.”

Notice Wrap Example 

The Noticewrap is a new mechanism intended to alert your company’s website users to the fact that the company has updated the Terms of Service and/or Privacy Policies. It is important to point out that the Noticewrap is not a “Clickwrap.” Users don’t actually accept or otherwise purport to bind themselves to any agreement. In fact, users are supposed to close it instead of accepting it. Access is never denied to the site.

However, the Noticewrap does provide much better arguments for a shrink wrap–style acceptance mechanism. Users are made keenly aware that not only are there both a Terms of Service and a Privacy Policy, but also they have somehow changed. Additionally, it is no secret that users loathe screen clutter, so, rather ironically, website operators can direct their attention to the documents more easily by giving users the ability to close the Noticewrap.

Adding a Noticewrap to your company’s website could increase the chance that your Terms of Service and Privacy Policies are enforceable without negatively impacting the user experience. It is likely worth a conversation within your organization.