the screen cluttered? Is the entire
screen including the terms and
conditions visible at once? Are the
links to the terms and conditions
in different colours or contrasting
with the background? Are the
terms and conditions spatially
coupled with the ‘I agree’ or ‘Sign
Up’ button? The layout of your
website is critical not just from
a user experience perspective.

The use of a hyperlink for the
terms and conditions won’t
preclude a court from determining
that there is reasonable notice,
provided that the links through
to the terms and conditions are
clear and conspicuous such that
a reasonably prudent website
user would have been put on
constructive notice of them.

The fact that one does not read
the terms and conditions does
not mean that the user has not
accepted them provided that the
user is given reasonable notice.

Manifestation of Assent
Like the question of reasonable notice,
the courts will apply an objective
standard to whether there was a
manifestation of assent by the user
to the terms and conditions. If there
has been reasonable notice to the
user that a particular act, such as
clicking a button, signifies that there
has been acceptance of the terms
and conditions, then if the user clicks
the button, they are taken to have
accepted all the terms and conditions
even if they do not know what they are.

It was noted in Dialogue that whilst
internet commerce has created new
and different situations for the courts
to consider, it has not changed the
requirement that a touchstone of a
contract is the manifestation of assent
either through writing or conduct.

In assessing internet contracts the
Federal Court noted that the US
courts place online contracting on ‘a
spectrum of validity, with clickwrap
and sign-in wrap agreements on
one end of the validity spectrum
and browse wrap agreements on
the other.’ In Dialogue, Justice
Beach found that whilst there
was a valid arbitration agreement
formed using Instagram’s ‘sign-in
wrap’ agreement, Instagram had
waived its rights to rely on such
arbitration clause. Instagram’s
stay application was therefore
dismissed. Should you require
assistance in determining at which
end of the spectrum your internet
contracting is at, please contact us.

Inspire March 2021
13 Melissa Wingard | Special Counsel
BA(Eng&Hist) LLB(Hons) GradDipLegPrac
GradDipAppFin&Inv MCyberSecOps
melissa.wingard@pof.com.au