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In a click-wrap scenario, how does one prove, legally, that a user actually clicked or checked the "i accept" or equivalent on a given site.

e.g. what if the website owner doesn't track clicks, track TOS versions, etc. What if the whole user flow changed since the alleged acceptance of TOS, etc.

What do the courts look for to determine whether the user did in fact take the action which confirms their agreement with the TOS, and what those TOS actually were at the time of the issue in question? ...and, with which party does the burden of proof rest and what constitutes proof?

GWR
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3 Answers3

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The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this.

Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement.

If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that.

It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony.

Community
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WBT
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WBT gives a great perspective from the legal side!

From the website owner's side I can add the following as I had to go through setting up the legal part of my software as a service platform recently:

  1. I keep a copy of all my legal documents (term of service, privacy policy, cookie policy) along with a timestamp of when they were published. I automated the process of archiving new revisions but you could very well do this by hand.

  2. When a new user signs up I store a timestamp of when the user clicked the "Sign up" button. Btw, my server verifies that the user checked "I agree..." or otherwise cancels the sign up.

  3. If I get into the unfortunate situation that I have to produce the legal documents in court I can compare the timestamps of the legal document history with the timestamp in the sign up record and then pick the revision of my legal documents the user agreed to back then.

analog-nico
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You would have to click OK to be let into the site right? So if you used the site you clicked ok.

Putvi
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