CONCEPT OF CLICK WRAP UNDER IT ACT

A click wrap a.k.a (click-accept, click-to-sign, or click through) agreement, is an online

agreement that users agree to by clicking a button or checking a box that says “I agree.” It can be
taken as take-it-or-leave-it contract which lacks bargaining power. In such contracts one
party has a dominating position, thus authorizing them to decide the terms of the
agreement while the user has no power to sort out the terms. The only alternative
navigable to the user is either to accept it or decline it.

Problem with Click wrap-

The odds are that, you consent to click wrap contracts all the time. For example, we enter
into such agreements while opening a bank account, while applying for some
membership, buying consumer products etc. Occasionally, these postulations are
preposterous, revealing numerous pages of content in a small window that, for all reasons, no
client would take chance to peruse.
A click wrap is mostly an enforced type of online agreement because it require users to
affirmatively assent to a contract by checking a box or clicking a button.  
When there is any problem associated with the contract it is assumed that the terms of the
contract apply and the signatories have to abide by it.
Even the courts have dubious opinion on the matter. On one hand, they have accepted that a
person cannot claim that he was never aware of the contract or was coerced into signing the
contract and on other hand, declined such claim.

 In Feldman v. Google, Inc. 2007 Google, Inc. sought to have plaintiff’s complaint
dismissed on the ground of improper venue. Defendant contended that plaintiff agreed to
California as the venue for all actions between them by clicking on an internet “click
wrap” agreement which mentioned a forum selection note. Plaintiff asserted that the
“click wrap” agreement is a contract of adhesion which by its terms is unconscionable.
The court held that click wrap agreement was enforceable as there was mutual assent to
the agreement.

 Bragg v. Linden Research, Inc. 2007 The owner contended that the operators of the site
unlawfully confiscated his virtual property and denied him access to their virtual world.
The operators of the site contended that the court lacked personal jurisdiction over him.
The court found that provision was buried in a take-it-or-leave-it set of terms, presented
to customers before they could participate on the site and refuted the validity of contract.

The Indian Contract Act, 1872 has not been modified yet to particularly insert the scope of
Click wrap agreement. The Supreme Court of India in Trimax International FZR v. Vedanta
Aluminium Limited, India, 2010 upheld that if the terms of a Contract had been discussed over
the email, such emails constituted to be a valid contract and enforceable. Here the Supreme
Court recognised the validity of e-contracts even if they were not electronically signed and
registered.

In LIC India v Consumer Education and Research Centre the Supreme Court held that when
a contract is of an adhesion contract then, in the light of Article 14 of the Constitution, the Court
shall strike it as unfair contract.

In Mumbai vs Gujrat Pipavav Port Ltd  the Income Tax Appellate Tribunal
expressed doubts with regard to the enforceability of click wrap. The Tribunal
opined that where the terms of the contract are highly detailed, where the user often
doesn’t read through the entirety of the contract prior to accepting it, the same does
not have a deleterious effect upon the validity of the said contract except the terms
of the same are indefensible.

It can thus be observed that the Indian courts have accepted the validity of e-contracts however,
this is not a blanket acceptance.

Click wrap agreement under Information Technology Act, 2000

Section 11 provides that the legislators accept an offer by way of data messages either by party
himself or by any e-system programmed for a specific purpose (which include offer in click wrap
agreement) but it is silent as regard mode of assent or acceptance of the same.

Section 10 A deals with the validity of e-agreements, it inter alia states that

“Where in a contract formation, the communication & acceptance, of proposals, the
revocation of proposals and acceptances, as the case may be, are expressed in e-
form or e-record, such contract shall not be deemed to be unenforceable solely on
the ground that such e-form or means was used for that purpose”.

E-contracts are generally electronically or digitally signed. A digital signature

under Section 2(p) is 'authentication of any e-record by a subscriber by means of
an e-method or procedure. ’ Electronic and digital signatures are further valid under
the Section 5 provides that ‘where any law provides that information or any other
matter shall be authenticated by affixing the signature or any document shall be
signed or bear the signature of any person, then, notwithstanding anything
contained in such law, such requirement shall be deemed to have been satisfied, if
such information or matter is authenticated by means of an electronic signature
affixed in such manner as may be prescribed by the Central Government.’
The Indian Evidence Act 1872, presumed the validity of digital signature under
Section 65(a).

E-contracts that are widely used in the field of E-commerce are in the nature of
adhesion, these agreements are-

1. Shrink wrap
2. Click wrap
3. Browse wrap

The Indian Contract Act, 1872 mandates that all the conditions of section 10
should be fulfilled to enforce e-agreements .

Conclusion

Notwithstanding the surfacing of the internet and technology, it’s making difficult
to do business overseas. E-contracts are not normal for most businesses. A practical
cause for the same could be that most people are reminiscent regarding the validity
of E-contracts. Since, the ongoing e-contracts are shrink-wrap, click-wrap and
browse-wrap agreements, which have a obscurity with regard to their validity and
no settled law regarding the same, specially in India.

However, with the shifting economy, it would be pernicious to the economy and
business environment, to treat all e-agreements as prima facie void.

REFERENCES

1. https://www.google.com/amp/s/blog.ipleaders.in/e-contracts-shrink-wrap-click-wrap-
browse-wrap-agreements/amp/
2. https://ironcladapp.com/journal/contract-management/what-is-a-clickwrap-agreement/
3. https://www.legalserviceindia.com/legal/article-369-online-click-wrap-agreements-an-
analysis.html
4. https://www.google.com/amp/s/www.lexisnexis.com/community/amp-casebrief/
casebrief-bragg-v-linden-research-inc
5. https://www.google.com/amp/s/www.lexisnexis.com/community/amp-casebrief/
casebrief-feldman-v-google-inc
6. https://www.lawyered.in/legal-disrupt/articles/e-contracts-is-it-the-new-normal/
7. https://www.google.com/amp/s/blog.ipleaders.in/legal-validity-of-click-wrap-and-shrink-
wrap-agreements/amp/