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What are the basic requirements of click-wrap consent?

Click-wrap consent refers to a manner in which software users agree to an end-user license agreement (EULA); for example, when downloading an app or browsing on a website. Software suppliers want to ensure that their EULA is enforceable against the end-user. In order to give a EULA the best chance at being enforceable against the end-user, a software supplier should adhere to the following guidelines:

  • Clear and Conspicuous Notice: The terms and conditions must be clearly visible to the consumer. They cannot be hidden or difficult to find.
  • Opportunity to Review Terms: Consumers should be given adequate time and opportunity to read and understand the terms before they accept them. There should be hyperlinks to the policies at or near the place where the use agrees to the policies.
  • Informed Consent: Ensure that the consumer is fully informed about what they are agreeing to. The “I agree” button or checkbox should only be activated when the user has clearly acknowledged the agreement. The user’s consent must be voluntary and based on a clear understanding of the terms they are accepting.
  • No Pre-Checked Boxes: Pre-checked boxes (where the consumer is automatically considered to have agreed to the terms unless they uncheck the box) are discouraged. The user should be required to take an active step to demonstrate consent (e.g., clicking “I agree” or checking a box themselves).
  • Unambiguous Agreement: The language used in the click-wrap agreement should clearly explain what the user is agreeing to, including that their action signifies acceptance of the terms. The user must know that they are agreeing to legal terms.
  • Record of Consent: The FTC recommends that businesses maintain a record of the user’s consent for future reference, particularly in the event of a dispute. This might include logs of when the user accepted the terms, what version of the agreement they agreed to, and any other relevant information.
  • No Forced Acceptance: The user should have the option to decline the agreement. If clicking “I do not agree” or not consenting at all prevents access to the service, this is usually acceptable, but users should not be tricked into accepting without their knowledge.
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