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?
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™.”
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.
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.