Whether your document is likely to be enforced as a contract by a court depends on whether you can prove that the user consented to the documents (e.g., whether a contract was entered into). Whether you can demonstrate that a contract has been entered into turns primarily on the design of the mobile game.
Definitions: Browsewrap and Clickwrap
The key design choice is between a “clickwrap” and a “browsewrap." Clickwrap agreements are generally defined by the requirement that users ‘click’ some form of ‘I agree’ after being presented with a list of terms and conditions. A browsewrap is an agreement whereby a customer assents to the contract merely by playing the game. There is no affirmative action required for a browsewrap. Browsewraps are a common feature in mobile applications because consumers often want to access the application as soon as it downloads.
Although browsewraps are not presumptively unenforceable, they are noticeably more difficult to enforce and, for at least that reason, are disfavored from a risk mitigation perspective.
Design: What Will Courts Enforce?
Similarly, in another instance a court enforced the terms of service where the mobile application user created an account that included a notice that by creating the account they agreed to the terms of service. The court pointed to the affirmative actions that the user had to take to create the account and that during the process was presented with the terms of service and an opportunity to view the terms. The court there, too, focused on the size of the font, the colors in relation to one another (i.e., whether anything was obscured or hard to view). The court in that case concluded that “the design of the screen and language used render the notice provided reasonable as a matter of California law.” The user’s assent—registering for the service—was unambiguous in light of the design. Of note for other mobile applications, the court wrote that “when considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone.”
Finally, it is prudent to obtain consent to updates to your terms of service and not merely rely on language in your terms that a user consents to future updates.
Depending upon the specific application and context, companies should consider the following procedural changes:
• Use a font that is legible on all relevant platform devices (i.e., font sizes must not be so small on a mobile phone as to be illegible).
• Require the click before the user can use the application.
• Track every click back to a verifiable account, so that if you ever need proof that a specific consumer consented, you have it.
• Think very carefully before relying on a browsewrap.
There is no question that clickwrap is more cumbersome to the consumer and more burdensome to the company. There are ways to alleviate these concerns, by working with counsel to draft the appropriate approval process for the application to minimize risk and maximize consumer satisfaction.