Designing Enforceable Terms and Conditions for Websites and Apps
The Emily Wu v. Uber Technologies decision by New York’s highest court has solidified critical standards for enforcing terms and conditions and other digital agreements such as privacy policies, particularly emphasizing the importance of active user consent.
The case—which upheld Uber’s arbitration clause despite the plaintiff’s claim that she never reviewed updated terms—serves as a blueprint for businesses seeking to draft enforceable terms while navigating evolving judicial expectations. Here, we break down the ruling’s key takeaways, contrast clickwrap and browsewrap consent models, and provide actionable best practices to ensure your online agreements comply with modern legal standards.
Key Lessons from Wu v. Uber
- Active Consent Is Paramount: Uber’s process—sending email notifications, displaying in-app pop-ups with hyperlinked terms, and requiring a checkbox—demonstrated “reasonable notice.” The court ruled that users who skip reviewing terms cannot later claim ignorance.
- Retroactive Terms Can Apply: Uber’s arbitration clause covered disputes arising before the updated terms were accepted, including Wu’s injury claim. Courts may enforce retroactive provisions if users clearly consent to updates.
- Ethical Communication Matters: A dissenting opinion criticized Uber for contacting Wu directly during litigation, bypassing her attorney. This highlights the potential need for businesses to coordinate with users’ counsel in active disputes.
Clickwrap vs. Browsewrap: What’s Enforceable?
| Feature | Clickwrap | Browsewrap |
|---|---|---|
| Consent | Requires explicit action (e.g., checkbox) | Assumed through website/app usage |
| Visibility | Terms displayed during critical actions such as account creation and order placement | Terms hidden in footers or obscure links |
| Court Acceptance | High (clear evidence of agreement) | Low (often unenforceable due to lack of notice) |
| Example | “I Agree to the Terms & Conditions” button after checkbox confirmation | “By using this site, you accept our terms” |
The case underscores why courts favor clickwrap: it provides unambiguous proof of user consent.
Best Practices for Enforceable Online Agreements
1. Use Clear, Action-Oriented Language
- Label buttons “Accept Terms” or “Agree and Proceed”—never ambiguous terms like “Next.”
- Example: Uber’s checkbox stated, “By checking, I agree to the updated Terms of Use.”
2. Ensure Visibility and Proximity
- Place acceptance language directly above the action button.
- Use bold, legible text (12pt minimum) with high contrast against the background.
3. Highlight Hyperlinks to Terms
- Make hyperlinks brightly colored (e.g., dark blue) and underlined. Avoid blending them into body text.
4. Eliminate Distractions
- Present terms on a clean screen without competing buttons, ads, or animations.
5. Notify Users of Updates Proactively
- Send emails and in-app alerts for material changes, linking directly to revised terms.
6. Document Consent Thoroughly
- Log timestamps, user actions, and IP addresses to prove users had a chance to review terms, including via vendors such as Ironclad.
Takeaways
Wu v. Uber reaffirms that courts will enforce digital agreements when businesses prioritize transparency and user agency. Clickwrap remains the gold standard for demonstrating consent, but its effectiveness depends on ethical design choices that steer clear of “dark patterns”: clear language, strategic placement, and distraction-free interfaces. For both legal professionals and business owners alike, the ruling stresses the need to align online agreements such as terms and conditions, terms of service, and privacy policies with both usability and judicial rigor, ensuring agreements are as user-friendly as they are legally defensible, among other relevant legal considerations for online terms.
