Most of us have, at one time or another, clicked “Agree” to the Terms and Conditions associated with an online purchase, software download, or membership on a social media platform.
The big question many people have is: “if I didn’t read all the fine print before clicking “Agree,” am I still bound?”
Though I hesitate to burst anyone’s (dot.com) bubble, the short answer is: yes; we are all bound by the agreements we make. The longer answer is: probably, but it depends.
In Rudder v Microsoft Corp., 1999 CanLII 14923 (ONSC), the plaintiffs argued that they should not be bound by certain terms of Microsoft’s “Member Agreement” because they had not read the entire agreement prior to electronically executing it. The court disagreed. Justice Winkler held that the requirement to scroll through the “Member Agreement” was essentially no different than the requirement to flip through pages in a multi-page document. He further held that to give effect to the plaintiff’s argument would “…lead to chaos in the marketplace, render ineffectual electronic commerce and undermine the integrity of any agreement entered into through this medium.” Thus, generally speaking, we are all bound by the online Terms and Conditions to which we agree by clicking.
Sometimes, however, individual terms in online agreements may be found unenforceable. In Douez v Facebook, Inc., 2017 SCC 33 (CanLII), the Supreme Court of Canada found a particular provision within Facebook’s Terms of Use unenforceable as against plaintiffs suing under BC’s Privacy Act. The majority of the Court acknowledged that there is an inequality of bargaining power between large corporations and individual consumers, who essentially have no choice but to “take it or leave it.” Despite this, the Court was not willing to go so far as to release us all from the online Terms and Conditions to which we have agreed. For now, it is reasonably safe to assume that if you clicked “Agree,” you are bound.
If you have any questions related to your rights under a contract or other agreement, the lawyers at Key Murray Law can provide the professional advice you need.
Iain McCarvill
Article Clerk
902-436-4548
iain.mccarvill@keymurraylaw.com
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
