Enforceability of Clickwrap and Browsewrap Terms in Australia: Lessons from the U.S. and the U.K.

Abstract

In a two week period in the first half of 2009, I bought theatre tickets from a virtual box office, browsed a social networking site a handful of times, and read a leading metropolitan newspaper online every day. All three of these activities, whether or not I was aware of it at the time, were intended by the service providers to be subject to contractual terms. For two of these activities I was asked to click on a button to indicate I agreed to these terms; for the other, I never even noticed a reference to the terms until I returned to the site for research purposes. I will admit freely that during my initial web activity, I was foolhardy enough to read none of the proffered terms. This paper asks the question: will the service providers nevertheless be able to rely on the protection of those terms?