Authored By: Anushri Dissanayake
Middlesex University - Dubai
In the age of digital commerce, most users enter contracts by clicking a single “I agree” button, often without reading or understanding the associated terms. These clickwrap agreements, which require affirmative action from the user to accept terms, are now standard in software, social media, retail, and service platforms. While contract law traditionally rests on the principles of freedom of contract, offer and acceptance, and certainty, the realities of modern consumer behaviour challenge these assumptions. Empirical studies confirm that over 90% of users do not read online terms before agreeing to them.1 This raises a fundamental legal question: Can individuals be truly bound by contracts they have not read or meaningfully consented to? Courts have generally upheld clickwrap contracts, relying on traditional doctrines of incorporation and notice, but concerns persist around informed consent, procedural fairness, and power asymmetry.2 This article critically examines the enforceability of clickwrap contracts in English law, analysing principles from case law and statutes such as the Consumer Rights Act 2015, while also referencing comparative and scholarly debates on contract formation in digital spaces.3
The formation of online contracts rests on the same foundational principles as traditional contracts: offer, acceptance, intention to create legal relations, and consideration. However, digital contracting methods, especially clickwrap and browsewrap agreements introduce unique challenges regarding consent and notice. Clickwrap agreements require users to actively click “I agree” before accessing a service or completing a transaction. In contrast, browsewrap agreements make terms available via a hyperlink, which the user is assumed to accept merely by using the website. Courts have generally been more willing to enforce clickwrap contracts, given the explicit nature of user assent.4In Parker v South Eastern Railway Co, the court established that parties are bound by contractual terms if reasonable steps were taken to bring those terms to their attention.5 This principle was later reinforced in Thornton v Shoe Lane Parking Ltd, where Lord Denning held that particularly onerous terms must be clearly highlighted.6 Clicking “I agree” may satisfy the requirement of acceptance, but whether the terms are binding depends on whether adequate notice was given. Courts focus not only on the user’s action but also on the transparency, accessibility, and prominence of the terms, a crucial standard in modern digital contracting.7
A key challenge in the enforceability of clickwrap contracts lies in the incorporation of terms, specifically, whether users have received reasonable notice of the contractual provisions they are said to accept. In traditional contract law, the timing and visibility of terms determine their validity. n Olley v Marlborough Court Hotel, the court held that terms introduced after the contract had been concluded were unenforceable.8 This principle is particularly relevant in online contracts where terms are sometimes made available only through a hyperlink, or after clicking “agree”. Similarly, in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd, the Court of Appeal ruled that particularly difficult or unusual terms must be expressly drawn to the other party’s attention to be enforceable.9 While traditional contract principles support the enforceability of clickwrap agreements, consumer protection law introduces further scrutiny, particularly regarding fairness and transparency. The Consumer Rights Act 2015 (CRA) consolidates and updates the rules relating to unfair terms in consumer contracts.10
Under section 62 of the CRA, a term is unfair if it creates a significant imbalance in the parties’ rights and obligations, contrary to the requirement of good faith.11 Unfair terms are not binding on consumers, although the remainder of the contract may still be enforceable. The Act further mandates that terms must be in plain, intelligible language and, where not individually negotiated, must be brought to the consumer’s attention in a clear and timely manner.12
In OFT v Ashbourne Management Services Ltd , the High Court struck down gym membership contracts that imposed lengthy minimum terms and harsh cancellation penalties.13 The court held that such terms were unfair due to their lack of transparency and disproportionate burden on consumers.14 his reasoning applies directly to many modern clickwrap contracts, particularly those containing auto-renewal clauses, broad data harvesting rights, and liability exclusions embedded within complex terms. Although the CRA strengthens consumer rights, critics argue that its real-world effectiveness is limited. Consumers often remain unaware of their protections, and enforcement relies heavily on proactive action by regulators or individuals.15 In practice, formally fair digital contracts may still exploit users’ information asymmetry, undermining the CRA’s objective of substantive fairness.
Although clicking “I agree” may formally satisfy the legal requirement for acceptance, the notion of informed and meaningful consent in clickwrap contracts is increasingly being questioned. Studies show that the vast majority of users, over 90% do not read online terms and conditions, largely due to their length, complexity, and presentation.16 As Ian Ayres and Alan Schwartz argue, this creates a “no-reading problem” in consumer contract law that undermines the legitimacy of digital consent.17 This reality casts doubt on whether users’ agreement reflects genuine autonomy or whether it functions as a legal fiction, upheld more for commercial efficiency than true consensus. In practice, users face a binary choice: accept the terms wholesale or forego access to essential services like banking, communication, or education platforms.
The power imbalance between tech companies and consumers exacerbates this issue. Corporations draft standardised terms, control access to platforms, and embed complex clauses in opaque language, all while disclaiming liability.18 Consumers, often unaware or unable to negotiate, are reduced to passive participants. While English law traditionally prizes freedom of contract, this ideal presumes equal bargaining power and mutual understanding conditions rarely met in the digital context. Courts and lawmakers are increasingly called upon to reconcile contractual freedom with consumer vulnerability, ensuring that technical validity does not override substantive fairness.19
In response to the growing complexity and opacity of digital contracts, recent reforms have sought to enhance transparency and fairness, particularly for consumers. The Law Commission’s 2021 report on Smart Legal Contracts recommended clearer drafting, increased use of plain English summaries, and better technological design to ensure meaningful consent in electronic agreements.20 It emphasised that legal obligations must be accessible even where contracts are executed through automated or coded platforms. Several proposals have been made to improve user awareness, including pop-up notifications, key terms highlighted before acceptance, and the adoption of standardised contract formats for common services.21 These would help mitigate the “no-reading” problem by directing attention to essential rights and obligations.
International developments provide further insight. In California, stealthing (non-consensual condom removal) has recently been criminalised, and data consent rules require opt-in mechanisms for specific permissions.22 Similarly, EU consumer protection directives now require that consent to data collection and auto-renewals must be freely given, specific, informed and unambiguous.23While technological evolution has outpaced legal doctrine, these reforms signal a growing recognition that digital consent must reflect real understanding, not merely procedural formality.
Clickwrap contracts are a fundamental part of the modern digital economy, and courts have generally upheld their enforceability based on traditional doctrines of offer, acceptance, and reasonable notice. However, this article has shown that such technical validity does not always equate to substantive fairness, particularly when users do not read or understand the terms they accept. The Consumer Rights Act 2015 offers important protections, but real-world enforcement remains inconsistent, and users often lack the time, knowledge, or power to contest unfair terms.
As digital platforms continue to dominate commerce and communication, the law must evolve to ensure that consent reflects genuine understanding not merely procedural formality. Ultimately, enforceability should depend not just on the act of clicking, but on whether the user received clear, accessible, and meaningful notice of the obligations they are undertaking. Without such safeguards, the legitimacy of online contracting remains in doubt.
Bibliography
Cases
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA)
Parker v South Eastern Railway Co (1877) 2 CPD 416
Olley v Marlborough Court Hotel [1949] 1 KB 532
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 Specht v Netscape Communications Corp 306 F.3d 17 (2d Cir 2002)
Bragg v Linden Research Inc 487 F Supp 2d 593 (ED Pa 2007)
OFT v Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch)
Statutes
Consumer Rights Act 2015
Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services
California Civil Code § 1708.5.8 (enacted 2021)
Journal Articles
Ayres I and Schwartz A, ‘The No-Reading Problem in Consumer Contract Law’ (2014) 66(3) Stan L Rev 545
Law Commission, Smart Legal Contracts: Advice to Government (Law Com No 401, 2021) https://www.lawcom.gov.uk/project/smart-contracts/
Howells G, Micklitz H-W and Wilhelmsson T, European Fair Trading Law: The Unfair Commercial Practices Directive (Ashgate 2006)
McDonald AM and Cranor LF, ‘The Cost of Reading Privacy Policies’ (2008) 4(3) I/S: Journal of Law and Policy for the Information Society 543
Engstrom N, ‘Contracts in the Age of Smart Technology’ (2020) 103(2) Georgetown Law Journal 335
Books
Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton UP 2013)
Geraint Howells, Hans-W Micklitz and Thomas Wilhelmsson, European Fair Trading Law: The Unfair Commercial Practices Directive (Ashgate 2006)
Roger Brownsword, Contract Law: Themes for the Twenty-First Century (2nd edn, OUP 2006)
Journal Articles
Ian Ayres and Alan Schwartz, The No-Reading Problem in Consumer Contract Law’ (2014) 66(3) Stanford Law Review 545
Aleecia M McDonald and Lorrie Faith Cranor, ‘The Cost of Reading Privacy Policies’ (2008) 4(3) I/S: Journal of Law and Policy for the Information Society 543
Nora Engstrom, Contracts in the Age of Smart Technology’ (2020) 103(2) Georgetown Law Journal 335
Reports
Law Commission, Smart Legal Contracts: Advice to Government (Law Com No 401, 2021) https://www.lawcom.gov.uk/project/smart-contracts/ accessed 20 May 2025
1Ian Ayres and Alan Schwartz, ‘The No-Reading Problem in Consumer Contract Law’ (2014) 66(3) Stan L Rev 545, 546.
2 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA); Parker v Southeastern Railway Co (1877) 2 CPD 416; Margaret Jane Radin, Boilerplate; Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press 2013) 89–90.
3 Consumer Rights Act 2015, s62; Radin MJ, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press 2013).
4 Specht v Netscape Communications Corp 306 F.3d 17 (2d Cir 2002); Bragg v Linden Research Inc 487 F Supp 2d 593 (ED Pa 2007).
5 Parker v South Eastern Railway Co (1877) 2 CPD 416.
6 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA).
7 Law Commission, Smart Legal Contracts: Advice to Government (Law Com No 401, 2021) https://www.lawcom.gov.uk/project/smart-contracts/ accessed 20 May 2025.
8 Olley v Marlborough Court Hotel [1949] 1 KB 532.
9Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433.
10 Consumer Rights Act 2015.
11 Ibid s 62(4).
12 ibid ss 64–68.
13 OFT v Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch)
14 Office of Fair Trading v Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch). 15 Geraint Howells, Hans-W Micklitz and Thomas Wilhelmsson, European Fair Trading Law: The Unfair Commercial Practices Directive (Ashgate 2006) 195–197.
16 Aleecia M McDonald and Lorrie Faith Cranor, ‘The Cost of Reading Privacy Policies’ (2008) 4(3) I/S: Journal of Law and Policy for the Information Society 543.
17 Ian Ayres and Alan Schwartz, ‘The No-Reading Problem in Consumer Contract Law’ (2014) 66(3) Stanford Law Review 545, 547.
18 Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton UP 2013) 89– 94.
19 Roger Brownsword, Contract Law: Themes for the Twenty-First Century (2nd edn, OUP 2006) 88–90.
20 Law Commission, Smart Legal Contracts: Advice to Government (Law Com No 401, 2021) https://www.lawcom.gov.uk/project/smart-contracts/ accessed 20 May 2025.
21 Nora Engstrom, ‘Contracts in the Age of Smart Technology’ (2020) 103(2) Georgetown Law Journal 335.
22 California Civil Code § 1708.5.8 (enacted 2021).
23 Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services [2019] OJ L 136/1.
