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A recent ruling has highlighted that T&Cs don’t have to actually be read by a customer, as long as they can easily access them and are given enough time to review them.
A woman thought she’d won £1 million in the National Lottery’s online Instant Win Game when numbers on her screen corresponded to the jackpot prize.
However, these numbers didn’t flash (which they should have done, according to the game procedures) and other parts of the display indicated that she’d only won £10. When she clicked the ‘Finish’ button to claim her prize, it was confirmed as £10 and this was credited to her account.
Players had to tick a box confirming that they’d read and agreed to be bound by the T&Cs, which were easily accessible by either drop-down menu or hyperlink. This is known as a ‘click-wrap’ procedure.
The company operating the lottery at the time maintained that what the woman saw was a display issue caused by a software coding error and that, based on its T&Cs, she’d only won £10.
Believing that she was entitled to the £1 million, the woman brought proceedings against the lottery company, eventually taking her claim to the Court of Appeal.
The woman argued, among other things, that she wasn’t bound by the click-wrap terms because they weren’t properly incorporated into her contract with the company. Therefore, the company shouldn’t be allowed to rely on their terms to avoid their liability to pay her the prize money.
Generally, to be incorporated, T&Cs don’t have to be read by the customer – they just have to reasonably be brought to their attention. The court found that the click-wrap did enough to do this. The terms were easily accessible via hyperlinks and drop-down menus and were displayed prominently enough. She also was given plenty of time to review them. Forcing her to scroll through the
T&Cs before allowing her to click ‘I agree’ wouldn’t have made it more likely that she would actually read them. The court therefore ruled that the T&Cs, including the game procedures, were properly incorporated.
As the game procedures made it clear that she would only win if the relevant figures flashed and she clicked ‘Finish’ to confirm her prize, the court found that she hadn’t actually won £1 million.
What this means for you?
You can use click-wrap to advertise your T&Cs, but you must be careful when you do. You must give the customer plenty of time to review them (even if they don’t actually do so) and make sure that they’re prominent and easily accessible. If the website remains open for a transaction for a very short period of time or the customer has to click on many different hyperlinks to find the relevant terms, click-wrap terms may not be incorporated. The T&Cs themselves must also be drafted and presented clearly. To help with this, you can use our Terms and conditions for selling goods or services on a website.
