by Jeremy Malcolm, Internet lawyer
Have you ever seen a Web page that has a "Conditions of use" link down the bottom? Ever wondered what happens if you don't agree with those conditions?
The answer is, probably nothing. An American legal case decided last month (July 2001) has decided that unless you are given an adequate opportunity to signify your agreement to the terms and conditions attaching to a software product or (presumably) a Web page, you are not bound by those conditions.
The case in question involved a Web page which allowed the public to download a copy of Netscape's SmartDownload software, and which contained a link to the licence terms and conditions at the bottom of the page. The effect of the court's reasoning was that unless there was a button or link that users were required to click on before they downloaded the software, they had not indicated their agreement to Netscape's conditions.
The decision probably would have been different if, after downloading the software, users were required to click on a button to say "I agree" before the software would run on their computer. This kind of agreement (often called a "click-wrap" agreement) is generally accepted to be enforceable.
It should be said at the outset that American law is obviously not the same as Australian law, and we do not have an answer from Australian courts yet about this question. On the other hand the American court's reasoning will probably be persuasive to an Australian court, particularly if Netscape cannot successfully appeal the decision.