Level Up!: Do Users Need To Click "I Agree" to TOS Button To Give Consent?

(TLDR: No. Courts decide these cases simply by whether the person had reasonable notice of the Terms & Conditions. If you have a website/app and plan on collecting personal info or just have customers in general, the I highly suggest you read more about this topic. Disclaimer: IANYL.)


As a UX designer, I try to make things that are as simple and painless as possible for users to use. One pain (and protection) that almost every product/app needs is a Terms of Service (TOS) agreement, aka Terms of Use (TOU), aka Terms And Conditions (T&C), aka End User License Agreement (EULA).

The current "best practice" for showing TOS to users is by providing a clear link near the "continue to use app" button (which could be a register or purchase button). This is so that most users don't have to go through the extra step of clicking "I Agree" to something that they likely didn't read. Also, having the TOS pop-up interrupts users' flow (and can sometimes be quite scary-looking).

But, unfortunately, before today, I never really thought about the legal consequences of the different methods to show users the terms and conditions. I just used methods that I noticed many other great UX designers and companies using. So, I wasn't able to explain the legal-ness (to my satisfaction) to concerned client.

I took it upon myself to take the time to do some research around this area and organize it into this post, with sources and references cited.

In my research, I have found that the courts also know that most users don't read the TOS, and clicking "I agree" doesn't mean that the user has read it. What the courts look for is mainly that the user has had the easy opportunity to find and read the TOS, if they wanted to.

There are two main ways that users "agree" to TOS:

• Click-wrap Agreement, aka "click-through agreement": This means that users must take some sort of action that signifies their consent to the TOS. This action could be a button that says "I Agree". Also, near the call to action, it is sufficient to say "By [continuing], you agree to our Terms of Service", with the TOS having a direct link.
• Browse-wrap Agreement, aka "not a contract": Basically, saying users agree to TOS by browsing website/app, and the link to TOS is not extremely easy to find in regular use. A link at the bottom of the website could be considered hard to find, especially when there are many other links down there too.

My Summary (Just from my research (links below), though more can always be done.)

• If your app collects or uses personal information, then use the click-through (clickwrap) agreement.
• Remove any clauses about unilaterally editing contract at any time.
• Add ability for company to modify terms, with prior notice. [More research needed for exact words to use]
• Add ability for users to reject TOS, e.g. by terminating account. 

A few sources I read, in order of my recommended readings (Yes, there is a "Good" before "Great", just because of what this post was supposed to be about):
 - Great: How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked (Forbes)
 - Great: The Clicks That Bind: Ways Users "Agree" to Online Terms of Service (EFF)
 - Good: Terms Of Use And Privacy Policy Best Practices (UpCounsel)
 - Great: Website Terms and Conditions: Some Best Practices (JDSupra)
 - Miscellaneous, but good: Terms of Service; Didn't Read (TOSDR)
 - Good: Browse wrap (Wikipedia)
 - Okay: Clickwrap / Browsewrap Agreements: It’s the Notice, Stupid!

Further Reading:
 - Terms of Use and the Digital Millennium Copyright Act (DCMA)
 - Search "Clickwrap vs browsewrap"


Disclaimer: I am not your lawyer (IANYL). This post's only intention is to help point readers in the right direction to learn more about this topic.

~ Danial Goodwin ~


ps - Bonus info! The terms "click-wrap" and "browse-wrap" come from physical goods/software that was "shrink-wrapped". Manufacturers had license agreements that basically said users agree to TOS by removing the shrink-wrap. (Source: Wikipedia)

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Things People Should Know: Parkinson's Law Of Triviality

(For people that have to work in groups or have a "project manager")

Also sometimes referred to as the "Bike Shed Problem" or "bikeshedding".

This is the newest phenomenon that I have added to my great list of Things People Should Know. It is not a new concept (first mentioned in 1957) and I have known about it for awhile, but recently I have been noticing it more.

What is the Bike Shed Problem? Let me provide an example: (From Parkinson's book, as quoted in Wikipedia)

In the third chapter, "High Finance, or the Point of Vanishing Interest", Parkinson writes about a finance committee meeting with a three-item agenda.

The first is the signing of a £10 million contract to build a reactor, the second a proposal to build a £350 bicycle shed for the clerical staff, and the third proposes £21 a year to supply refreshments for the Joint Welfare Committee. 

The £10 million number is too big and too technical, and it passes in two minutes and a half.
The bicycle shed is a subject understood by the board, and the amount within their life experience, so committee member Mr. Softleigh says that an aluminium roof is too expensive and they should use asbestos. Mr. Holdfast wants galvanized iron. Mr. Daring questions the need for the shed at all. Mr. Holdfast disagrees. 

Parkinson then writes: "The debate is fairly launched. A sum of £350 is well within everybody's comprehension. Everyone can visualize a bicycle shed. Discussion goes on, therefore, for forty-five minutes, with the possible result of saving some £50. Members at length sit back with a feeling of accomplishment." 

Parkinson then described the third agenda item, writing: "There may be members of the committee who might fail to distinguish between asbestos and galvanized iron, but every man there knows about coffee – what it is, how it should be made, where it should be bought – and whether indeed it should be bought at all. This item on the agenda will occupy the members for an hour and a quarter, and they will end by asking the Secretary to procure further information, leaving the matter to be decided at the next meeting."

So, now that you know about Parkinson's Law Of Triviality, hopefully you will be able to better recognize when others do it and when you do it yourself. It is a natural thing to want to give input when you can, but don't let it become a hindrance to getting the most important things done.

If you know ultimately that a feature really doesn't matter, then make sure you work on the important stuff first. Also, be aware, don't always think you know better than others.

More Reading:
- Coding Horror
- Wikipedia

~ Simply Advanced ~

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