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Terms of Use can be useful tools for website operators and owners to mitigate risks born from user interaction and user generated content—but it all depends on how ToU are implemented, according to partner Aaron Rubin and associate Anelia Delcheva of Morrison Foerster in this recentpost on the Socially Aware blog. Should users be forced to click a box saying they understand? Or should they be automatically bound by using the site? Here are some of the authors’ suggestions on setting out the terms so they stand up in court.
  • Clickwrap vs. Browsewrap. “Courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms,” said the authors, noting this isn’t surprising to them because in general courts are assessing whether users actually have notice of the terms under which they are allegedly bound. Clickwrap is when a user must check a box saying they understand the terms, whereas browsewrap provisions provide notice to consumers and a link, but don’t ask them to take affirmative action.