As online retailers continue to rise in popularity among consumers, so do the prevalence of ‘click-wrap’ agreements online that ask users to click ‘I agree’ to the terms and conditions on the website. While these agreements are rarely read thoroughly, they can contain unfair terms that affect consumers. While this specific issue is yet to be dealt with in Australian courts, there have been a number of interesting claims in the USA regarding click-wrap agreements.
In Meyer v Kalanick, an Uber passenger sued Travis Kalanick, the founder of Uber, for antitrust behaviour. When Uber sought to refer to an arbitration clause in their terms and conditions, Meyer argued that the contract was invalid. As the contract was formed by a passenger filling out their payment details and forming an account on a phone, the terms and conditions were only referenced under the ‘register’ button in links to the extensive terms. The court said the key question was how conspicuous the terms were to consumers, noting that the links on a small iPhone screen were not particularly noticeable. However the court ultimately decided that the terms were enforceable in the contract because they were ‘standard,’ meaning no special attention had to be drawn to them.