Free for a Fee

By Eric Goldman

Scherillo v. Dun & Bradstreet, Inc., 2010 WL 537805 (E.D.N.Y. Feb. 17, 2010)

I teach my Cyberspace Law students that the most effective online contract formation process is a “mandatory non-leaky clickthrough agreement”:

* mandatory = the user cannot proceed to the destination without going through a screen soliciting their consent to the user agreement.
* non-leaky = there are no alternative ways the user can reach the destination. I realize this is redundant with “mandatory,” but I remind students that a seemingly mandatory process can have leaks. For example, if customer support representatives will manually set up user accounts occasionally, the mandatory online process has become leaky because now a few users reached the destination without consenting to the agreement.
* clickthrough = the user manifests assent to the contract by clicking, and the user is told that the click signifies assent.

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