Is “Clickwrap” a thing of the past?

Run a web based online business?

You know those website Terms of Service? The ones that say “We can change these terms any time, by giving notice… even if you never see that notice?

Well, it's not true anymore.

Recently, courts have been requiring evidence of actual, or at least constructive notice before enforcing these modification.

In one case, an emailed notification was not, because the website operator couldn't prove that the recipient had actually seen the notice and read it.

In another case, defendant, an online training website attempted to change its terms of use to prevent the plaintiff from using the content on the site to compete with the defendant's business. After the plaintiff in a breach of contract suit was denied a restraining order by the trail-court, the 9th Circuit Court of Appeals found that there wasn't adequate notice of the changed terms, even though the defendant was a sophisticated user, and would have had to see the notices on the website at login, so consent couldn't be imputed.

So, what does this mean for online business owners?
Well, if you're changing the terms of service on your website, merely posting them won't do the job. You must make sure the users actually read (and consent to) the changes. Best practice is probably to require a click-through upon login, before allowing continued use of the site.