Unlocking Legal Consent

Clickwrap, Browsewrap, and Scrollwrap

As the use of mobile or on-line self storage leasing grows, so does the importance of how websites secure user consent to their terms. Courts have recognized several formats—clickwrap, browsewrap, and scrollwrap—each with its own enforceability values and risks.

Clickwrap: 

A clickwrap agreement requires a user to take an explicit affirmative action, such as clicking “I agree” or checking a box, after being presented with the terms or a link to them. Courts have generally upheld clickwrap agreements as enforceable when users are given clear notice and a genuine opportunity to review and agree to the terms.  

There are some key cases that address clickwrap contracts. One of the earlier cases was Feldman v. Google (2007): The court held that the clickwrap license was enforceable as long as the user had the opportunity to review the applicable terms and conditions before clicking “I accept”.  A recent case upholding a clickwrap agreement was Lamonaco v. Experian (2025) where the Eleventh Circuit upheld an agreement relating to the parties’ contract and its arbitration agreement.

Browsewrap: 

A browsewrap agreement places the terms and conditions of the transaction in a hyperlink (often in the footer) of the website without requiring that the user take any further active steps to agree to the applicable provisions.  Many courts have scrutinized these systems closely, often finding them unenforceable unless the terms were conspicuous and users had actual or constructive notice that they would be bound to those terms.

Those decisions include: Nguyen v. Barnes & Noble (2014) where the Ninth Circuit ruled that simply placing a prominent hyperlink without additional notice failed to bind the user, because there was no affirmative action to signal assent to the terms. This decision was based on earlier cases including In re Zappos.com (2012) where a Nevada court found Zappos' browsewrap terms unenforceable due to how obscurely they were presented. 

Scrollwrap: 

A Scrollwrap agreement requires the user to “scroll” through the full contract text—typically in a dialog box—and then click to agree. Courts view scrollwrap agreements to be as strong (or stronger) than clickwrap agreements, since the site demands active engagement with the terms and conditions of the agreement. 

Courts have similarly supported scrollwrap agreements including Berroa v. Nasimov (2024), where a New York court enforced a scrollwrap arbitration clause, compelling arbitration because the user had to scroll through the terms before agreeing.

In all of these cases, the courts evaluated the enforceability of the on-line agreements based on two pillars: 1) Notice: Did the user reasonably see and understand that terms exist? and 2) Assent: Did the user take a deliberate action (or, sometimes, had actual awareness) to agree to the terms and conditions that were presented?

The design of the website and how the terms were presented were also found to be relevant in the decisions by the courts on these contracts. The courts examined the site’s font size, color contrast, placement of terms, and device-specific issues to determine whether the user met the conditions of notice and assent. 

For example, in Specht v. Netscape (2002): the Second Circuit found that simply clicking a “download” button was insufficient when the terms weren’t conspicuous. The Court did not uphold the clickwrap agreement in that decision.  Further, in Good v. Uber (2024), the Massachusetts Supreme Court found the clickwrap agreement inadequate because users weren't given a reasonable chance to review the terms before giving their assent, highlighting that even clickwrap agreements must be well-designed.  

Companies using on-line contracts must continue focusing on notice standards inherited from earlier contract law. The general advice, absent other information and resources, would be to recommend clickwrap or scrollwrap for binding agreements, and caution against relying on browsewrap systems. Specifically, the recommendation would be to use clickwrap or scrollwrap agreements whenever user assent to key terms (e.g., arbitration, liability waivers, privacy policies) is critical. Both methods clearly signal notice and create records of consent. Browsewrap agreements should be avoided unless the agreements carry minimal risk, and even then, the operator should consider adding design features to ensure a clear presentation of the terms.

Finally, an operator should endeavor to design the site so that the notice is visible, concise (and in contrasting text), place disclaimers and links close to actionable buttons and preserve all historical versions of the site in case they are later challenged about assent (in order to prove what the user saw -screenshots, system logs, etc.) Ultimately, in digital contracting, courts demand evidence—both that users saw the terms and that they knowingly assented. As discussed, clickwrap and scrollwrap agreements have held up when implemented correctly compared to browsewrap agreements. As online transactions evolve, clarity and deliberate design remain the best defenses against enforceability challenges.

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Scott Zucker is a partner in the law firm of Weissmann Zucker Euster + Katz P.C. in Atlanta, GA. Scott specializes in business litigation with an emphasis on real estate, landlord-tenant and construction law. For more visit www.wzlegal.com. 

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This newsletter is for the purpose of providing general legal insight into the self-storage industry. It should not be substituted for the legal advice of your own attorney.