The Vexed Question of "Implicit Click Consent Agreements": US Court Upholds a Preliminary Injunction in Register.com, Inc v Verio, Inc

On January 23, 2004, the US Court of Appeals for the Second Circuit upheld a lower court's ruling in Register.com Inc v Verio Inc granting a preliminary injunction against Verio. The case stemmed from Verio's improper use of data acquired from Register.com's WHOIS domain name registrant database. Contrary to the terms of use for WHOIS queries, Verio used the information to send unsolicited e-mails to prospective customers, including those of Register.com. Further, Verio led people to believe that its web site development services were in some way affiliated with Register.com. The relief granted included barring Verio from using any data obtained from Register.com's WHOIS database to make unsolicited contact with prospective customers. On appeal, each of Verio's primary arguments was rejected. However, a noteworthy aspect of the case lies in the Court's discussion of the enforceability of implicit click consent agreements. A query reply from Register.com's WHOIS database included a statement whereby the user agreed not to use the data obtained for mass solicitations. Verio made two related arguments to support its contention that it was not contractually bound by Register.com's terms of use for WHOIS queries - Verio argued, first, that it was not contractually bound to these terms, given that it gave no explicit consent and, secondly, that, in fact, it had rejected the terms. In support of its first argument, Verio relied on Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002). In that case, the 2nd Circuit Court found that the users were not contractually bound by Netscape's terms and conditions for the download of software, given that it could be downloaded without first having to view the page containing the terms and conditions or affirmatively manifesting consent with a click. However, the Court in Register.com distinguished Specht, which involved a one-time visit by users to download a piece of software. In contrast, Verio repeatedly entered Register.com's computers on a daily basis and admitted to being fully aware of the terms purporting to limit the use of the data. For its second argument, Verio cited Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 1887522 (C.D. Cal. 2000) where a California court refused to enforce the terms and conditions on the Ticketmaster web site against a user because inadequate measures were taken to draw the user's attention to the terms and conditions. While the Court in Register.com granted that obtaining the meaningful consent of a user through an affirmative act of consent such as clicking "I Agree" is essential for the formation of some online contracts, it noted that this level of consent is not necessary in all circumstances. The Court held that when the offeree makes the decision to take the benefit offered with knowledge of the terms of the offer, the taking constitutes acceptance of the terms and therefore binds the offeree. To view the case, see: http://www.shorl.com/gykehypypefa. Summary by: Colin Adams