By Lyndon Sayer-Jones and Dr Morris Averill -
Snapshot
- By 2018 it is expected by most experts that online use will be embedded in virtually every commercial transaction. Practitioners need to master this new breed of contracting or risk practising law for a rapidly diminishing clientele
- Given the unreliability of geo-blocking as a tool, lawyers acting for licensors should avoid assurances to licensees of absolute territorial exclusivity. It is also critical that online compliance tests be objectively determined for contractual certainty
- “Clickthrough” (rather than “browsewrap”) agreements are clearly the best way to establish a user’s acceptance of the terms of the contract
- Principal creators of cross-platform apps or websites should be advised that a non-exclusive licence to use underlying source code is sufficient in most circumstances
In recent years, the intellectual property bars of Sydney and Melbourne have bemoaned the pedestrian standard of drafting found in our online/web documentation, claiming it often sabotages litigation opportunities for aggrieved parties. It’s mainly because drafting legal documentation for internet/mobile transactions, at least in these formative years, is considerably more challenging than for conventional contracts.
While some experts claim the world’s legal professions trail behind the USA in this emerging area, US attorneys have not helped the situation by throwing into web agreements every conceivable protection, needed or not, knowing consumers rarely seek legal advice as they feel powerless to negotiate changes.
Despite the world wide web (Internet) being invented in 1989, online terms and conditions are becoming fossilised and turgid in the same way insurance documentation has been for so many decades.
Set out below are the main problem areas experienced with online agreements together with strategies to minimise disputes and loss.
