Volume II

Issue : 3: February 5, 2004

• U.S. National Cable Association Proposes Limited VoIP Regulation
• The VoIP Regulatory Debate Intensifies in Canada - TRAI Amends its Quality of Service Regulations for VoIP Long Distance Service in India
• Minnesota Judge Refuses to Reserve VoIP Decision - Panama Introduces Tax on VoIP
• Lawsuit Launched Against Credit Card Companies over Piracy of Internet Pornography
• U.S. Telemarketers Required to Identify Themselves to Consumers by Caller ID
• Federal, British Columbia and Alberta Privacy Commissioners Agree to Cooperate
• FTC Releases Report on 2003 Consumer Fraud and Identity Theft Complaints
• B.C. Court Rules Forward Looking Infra-Red Technology Does Not Constitute a Search
• RIAA Targets Individuals on Anonymous Basis - Australia Music Industry Sues ISP
• France Gets Ready to Take Action against Internet Piracy
• Canadian Company to Offer High-speed Internet Access Via Hydro Lines
• U.S. Court of Appeals Finds Formation of On-line Contract Does Not Require "I Agree"
• Ontario Court Asserts Jurisdiction Over Washington Post Based on Online Publication

Home > Volume II > Issue 3: February 5, 2004 > U.S. Court of Appeals Finds Formation of On-line Contract Does Not Require "I Agree"

U.S. Court of Appeals Finds Formation of On-line Contract Does Not Require "I Agree"

In a case involving the review of a preliminary injunction, the United States Court of Appeals, Second Circuit, recently considered the law with respect to the formation of an online contract. The Court concluded that there are circumstances in which a contract can be formed notwithstanding that the party accepting an offer never clicks on an "I agree" button.

In this case, an Internet domain name registrar, Register.com, sued a website services company, Verio, Inc., for, among other things, breach of contract. Every day when Register.com registered new domain name, Verio used its "search robots" to access the database and obtain the contact information (WHOIS data) for the new domain name registrants. Verio then marketed its services to these registrants by email and other channels. This marketing was in direct violation of Register.com's terms to the effect that the information in their WHOIS database could not be used for unsolicited commercial communications by email (spam), by mail or by telephone. Register.com succeeded in obtaining a preliminary injunction which was upheld by the Appeals Court.

On the breach of contract issue, Verio argued that because it did not receive Register.com's terms of use until after having gathered the WHOIS data, it was not bound by the terms. Verio relied on the Ticketmaster case (Ticketmaster Corp. v. Tickets.com, Inc. C.D. Cal. Aug. 10, 2000). In that case, the court rejected Ticketmaster's application for a preliminary injunction to enforce posted terms of use of data on its website. The Court cited the lack of an "I agree" box, and concluded that there was insufficient proof of an agreement to support a preliminary injunction. In Register.com v. Verio, the Court clearly disagreed with the Ticketmaster analysis: "We see no reason why the enforceability of the offeror's terms should depend on whether the taker states (or clicks) "I agree"."

The case also includes an interesting analysis of the issue of the enforceability by third parties of ICANN's standard contract with its registrars.

For a copy of the decision, visit:
http://shorl.com/gyrudagrotragra