BEYOND THE CLICK: THE LEGAL ENFORCEABILITY OF DIGITAL CONSENT UNDER INDIAN LAW

ABSTRACT: 

Technology is transforming how we enter into contracts and for many, this will simply be a  “click” to agree to terms and conditions, but can these clicks constitute legal consent? The focus  of this research has been to evaluate the legality of digital contract formation in India by  reference to the Indian Contract Act 1872 and the Information Technology Act 2000.  Additionally, it examines the principles of free and informed consent in the context of  electronic contracts as well as what the recently enacted Digital Personal Data Protection Act  2023 adds to this area. Ultimately, an examination of a recent decision by the Competition  Commission of India (CCI) regarding Meta provides evidence of concerns that the consent  required to use digital platforms may not always be voluntary, but instead appear to be coerced. Therefore, the research concludes with a call to update the relevant law to ensure truly informed  consent in the digital era. 

INTRODUCTION: 

In this day and age, signing a contract does not require paper or even a pen. By clicking on the  “I Agree” button, you have created an electronic contract if you enter into a contract simply  without reading the terms and conditions, regardless of whether you know what’s in it or not.  But is that click sufficient every time? Electronic contracts, also known as e-contracts or  electronic agreements, are within everyday life and business transactions in the modern world.  The fast proliferation of technology has caused an increasing use of online and digital contracts in multiple disciplines, so understanding how these contracts fit within the Indian contract law  framework is important.1 This rapid proliferation of technology has likewise impacted how  individuals’ personal data is processed, collected, and used in bulk. It is more important than  ever that privacy laws are done right to protect rights.2 The question is whether clicking on the  icon “I agree” stands for valid consent in the eyes of Indian law and, if so, under what  circumstances 

1. MEANING OF E-CONTRACT: 

An e-contract refers to any agreement that is signed and approved electronically and not the  paper, unless it is signed in person. Email, mobile apps, websites and even instant messaging  services like WhatsApp are included. E-contracts are electronic contracts and not paper-based  contracts. These agreements are generally intended for the parties convenience or to be signed  quickly. They work best when they are done to arrange a settlement with two people who must  agree to live at opposite corners of the world. But the parties in the contract are located  approximately 500 km apart, so they just need a digital signature to enter into a contract as  parties. In this increasingly digital world, a contract is the most likely way to sign a contract  without feeling physically worn out. The Originator and the Addressee are the two primary  participants in an electronic contract. The IT Act of 2008 defines an originator as someone who  sends, makes, stores or transmits any electronic message to another person; there is no  intermediary. (In this case, the one who initiates the e-contract creation process will give it to  the other party.) In the IT Act of 2008, an addressee means an individual who is not an  intermediary and is meant to receive the electronic record from the source by means of the  originator. In this case, the party that owns the electronic contract of the other party. 

E-signature contracts involve signing documents such as lease agreements or loan applications  using an electronic signature via a platform like Adobe Sign. Contracts are formed through  email communication as part of the exchange of offers and acceptances, as an example in  contracts between freelancers and clients. In Uber, mobile contracts require a mobile app to  accept users’ consent to the terms of service. Web-based forms require users to complete and submit online forms, the most common forms used in service applications, registrations, or  subscriptions, to sign up for services.3 

1.1 E contracts can be generically classified as: Shrink Wrap agreements are those that can be  read and consented to by the consumer only after a specific type of product has been  unwrapped. This term comes from the shrink wrap plastic product, which serves to preserve  the software or other packaging. The installation of software on a personal computer by  means of a CD is an example of a shrink-wrap agreement. Click Wrap agreements are  commonly found throughout the installation procedure for software. The User is required  to either ‘Accept or Decline’ the agreement, and thus its acceptance or rejection. The  agreements lack bargaining position. Clicking on the agreement to make or decline  payments online is an example of a click wrap agreement. 

2. LEGAL FRAMEWORKS IN INDIA:

In India, the Information Technology Act of 2000 has a significant impact on the regulation  and enforcement of e-contracts. Part of the Indian Contract Act of 1872 and the IT Act of 2000 are on E-contracts:  

2.1. Section 10A of IT Act, 2000 makes explicit that electronically made contracts are legal.  This clause guarantees that e-contracts can be enforced in a legal manner, the same way  paper contracts can. 4 

2.2. Section 2(1)(t) of IT Act, 2000 states that information produced, transmitted, received, or  stored electronically is a “electronic record”.5 

2.3. The definition of “electronic signature” or “digital signature,” which is required for e contract validation, is described in Section 2(1)(r) of IT Act, 2000. 6 

2.4. Section 65B of IT Act, 2000 defines the admissibility of electronic records in court, as a  condition of making electronic evidence equally as legitimate as physical proof, as much  as possible. 7 

These clauses enhance legal recognition and enforcement of electronic contracts. Even the  Indian Contract Act of 1872 still applies to contracts, although the IT Act of 2000 protects digital transactions. E-contracts are considered in accordance with all basic rules of contract  law, including offer, acceptance, intention to establish legal relationships, consideration, and  competence to contract. Although the Information Technology Act of 2000 gives legal validity  to electronic records as well as digital signatures, it does not provide any express definition  regarding the manifestation of consent in a digital environment. Hence, the traditional  principles of offer, acceptance and free consent as propounded in the Indian Contract Act, 1872  would continue to govern the formation and enforceability of electronic contracts. Satish  Kumar (2025) in his paper titled “Doctrine of Free Consent in Automated E-Contracts: Re Evaluating Indian Contract Law in the Age of Algorithmic Negotiation” states that, so far as  free consent is concerned, it is still a central aspect even though contracts are concluded  electronically. The author points out that though Section 10A of the IT Act provides for the  recognition of electronic contracts, there are issues such as whether it can be said that the click  or tap on the screen for acceptance manifests voluntary and informed consent, which still  remain to be settled judicially overall. 

3. DIGITAL CONSENT AND THE ESSENTIALS OF A VALID E-CONTRACT: 

For a contract to be legal & valid under Indian law, as stipulated in the Indian Contract Act of  1872, read with the Information Technology Act of 2000, all seven elements must be present.  However, there are special concerns regarding the nature of consent and enforceability when  these components are applied to e-contracts and everyday digital transactions. 

3.1. Offer and Acceptance: The “Terms of Service” and “Privacy Policy” pages on the Internet  are considered offers. The user accepts the offer by clicking “I agree.” However, this cannot  be considered as “informed consent” if no attempt is made to read the terms of the service 

3.2. Lawful consideration: This refers to what is delivered by the parties, as stipulated under S  2(d) of the Act. A contract to which there is no sound consideration is void. 3.3. Lawful Object: The object of the contract must be lawful according to section 23. All  agreements to do an unlawful act are void, because they are against the provisions of law. The biggest problem is that users agree to the terms because they must or feel they have no  choice. Courts may ask whether acceptance by mere clicking is really free consent. 3.4. Competency of the parties: All persons should have the capacity to contract, which  includes that they should be of age, of sound mind and not disqualified from contracting  according to section 11. In the case of e-contracts, it is necessary for a seller to prove the  competency of the buyer, which is a requirement for all contracts, owing to the fact that all persons should be competent to contract. In what way can the digital platforms make sure  that the user has the capacity to contract or not be a minor? Verification of age presents  problems. 

3.5. Certainty and Possibility of Legal Performance : The contract should contain certain  obligations and it should be possible to perform the same or otherwise, they would be vague  promises, as for instance to sell land on an uninhabitable planet. The digital medium  ensures that there is no misunderstanding about the obligations of the parties, although there  may be problems when the terms are buried or stated vaguely. 

3.6. Free Consent: There must be free consent of the parties, and the same must not be obtained  by coercion, undue influence, fraud, misrepresentation or a mistake. It is often difficult to  prove the existence of consent in the case of e-contracts because of the anonymity of such  contracts, and more tests are required to prove the existence of such consent.8Just by  accepting the terms and conditions, where the person accessing the service or page has no  choice rather than accepting or deny, if it’s denied, it will revert to the home page, which  basically means that without accepting, one cannot access the service or page. This consent  is not given mutually rather, it is given when there is no other option. 

4. CONSENT UNDER THE DIGITAL PERSONAL DATA PROTECTION ACT: 

The Digital Personal Data Protection Act (DPDP), 2023 is the first comprehensive Indian law  passed dealing with various issues. It explicitly acknowledges the importance of consent in  protecting individual privacy in the digital realm as ‘personal data’. However, this law also  seeks to fairly balance between the individual’s rights and the interests of companies processing  data. According to Seetharamu et al. : “Personal data shall not be processed without consent of  the Data Principal except in the following circumstances.” However, considering the fact  “Consent” for this law should be “freely given, specific, informed, and involve an affirmative  action”. Thus, it ensures the consent is explicit and given on a voluntary basis. 

Additionally, the Act compelled data fiduciaries, or the entities responsible for data processing,  to provide clear explanations to users regarding the objectives and type of data collection and  required them to stop processing data when citizens revoke their consent. This digital consent  can be regarded as a structured form of the aforementioned principle of the need for citizens’ informed and express wishes present in e-contracts and virtual agreements. On the other hand,  Seetharamu et al. warn that some provisions of the Act, particularly “Section 18 and its  provision of an exemption to the processing of data for all government departments if  processing is in the interest of national security is considered to be the most controversial  exemption available”, considerably undermine the strength of this protection. 

The authors further observe that the various ways in which DPDP lacks an independent data  protection authority, substituted by the restricted Data Protection Board, create enforcement  weaknesses where compliance or accountability cannot be guaranteed. Further, the DPDP’s  provision for data processing without explicit consent in cases considered “reasonable”  heightens doubt on whether consent through digital means has any voluntariness in Indian law  or is merely a formality. These loopholes indicate a profound contradiction between the  technological demanding efficiency and protecting privacy fundamentals. It remains a critical  issue in India’s path to digital consent.9 

CONCLUSION: 

The Competition Commission of India fined Meta Rs. 213.14 crore for “abuse of its dominant  position” regarding the 2021 Privacy Policy of WhatsApp that required all users to share their  data with Meta subsidiaries. First, the Commission had to identify the relevant markets, which  it did, highlighting OTT messaging apps through smartphones and online display advertising.  The Commission claimed Meta was dominant in both markets. The new privacy policy  provided no ability to opt out, and most of the required information was opt-in. It was deemed  an unfair practice under the section. Lastly, Meta violated the section in its process of creating  barriers for potential competitors.10 

This judgment proves that digital consent cannot be restricted to a single click on “I Agree.”  Even if the routes of technological development must be considered. Ultimately, the Indian law  must catch up with developments in digital technology and require that consent in electronic  contracts be free, informed, and voluntary in practice, and not just in theory. Two recent reforms  that could point the way forward are strengthening the enforcement of the IT Act and harmonising the standards for digital consent with the Digital Personal Data Protection Act,  2023. Both balance the needs of user autonomy and innovation. 

REFERENCE(S): 

1. YAGAY and SUN, Digital Contracts/Agreements: Evolution and Enforceability of E Contracts in Indian Contract Law Context, TaxTMI, (2025). 
2. Rao, S, The Evolution of Privacy Rights in the Digital Age: A Comparative Analysis of  GDPR and CCPA. IJL, 2(4), 52-56, (2024).  
3. Kathryn Stockton, Understanding Electronic Contracts (E-Contracts), Pocketlaw, (Jun  24, 2024) https://pocketlaw.com/content-hub/electronic-contracts 
4. Information Technology Act, 2000, § 10A 
5. Information Technology Act, 2000, § 2(1)(t) 
6. Information Technology Act, 2000, § 2(1)(r) 
7. Information Technology Act, 2000, § 65B 
8. Ayushi Singh, Sukhwinder Singh, E-Contract In India: Issues and Challenges,  International Journal of Interdisciplinary Research and Innovations, (2019).
9. Sreevalli Seetharamu et al., Digital Data Protection Laws: A Review, 11 Int J Sci. Res.  Sci. Eng’g & Tech. 64, 67 (2024), https://doi.org/10.32628/IJSRSET2411416 
10. Competition Commission of India, CCI imposes a monetary penalty of Rs. 213.14 crore on Meta for anti-competitive practices in relation to 2021 Privacy Policy Update, (Press Release, Nov. 18, 2024),https://www.pib.gov.in/PressReleasePage.aspx?PRID=207443

1 YAGAY and SUN, Digital Contracts/Agreements: Evolution and Enforceability of E-Contracts in Indian  Contract Law Context, TaxTMI, (2025). 

2 Rao, S, The Evolution of Privacy Rights in the Digital Age: A Comparative Analysis of GDPR and CCPA. IJL,  2(4), 52-56, (2024). 

3 Kathryn Stockton, Understanding Electronic Contracts (E-Contracts), Pocketlaw, (Jun 24, 2024)  https://pocketlaw.com/content-hub/electronic-contracts 

4Information Technology Act, 2000, § 10A 

5Information Technology Act, 2000, § 2(1)(t) 

6Information Technology Act, 2000, § 2(1)(r) 

7Information Technology Act, 2000, § 65B

8 Ayushi Singh, Sukhwinder Singh, E-Contract In India: Issues and Challenges, International Journal of  Interdisciplinary Research and Innovations, (2019).

9Sreevalli Seetharamu et al., Digital Data Protection Laws: A Review, 11 Int J Sci. Res. Sci. Eng’g & Tech. 64,  67 (2024), https://doi.org/10.32628/IJSRSET2411416 

10Competition Commission of India, CCI imposes a monetary penalty of Rs. 213.14 crore on Meta for anti competitive practices in relation to 2021 Privacy Policy Update, (Press Release, Nov. 18, 2024), https://www.pib.gov.in/PressReleasePage.aspx?PRID=207443