Unfair Terms in 'Clickwrap' and other Electronic Contracts

Abstract

Clickwrap and other electronic contracts are in widespread use in markets for computer software and for many online services. When confronted by a lengthy and incomprehensible contract, the response of many, if not most, consumers is to click 'yes' – without reading the contract or giving it careful consideration. We have moved away from the traditional model of negotiated agreement on terms to the unilateral imposition by suppliers of terms, many of which are unfair. This article considers the failure of existing Commonwealth and State laws to deal with the problem and concludes that legislative intervention is necessary to protect consumers.