Authored By: Agnes Reji
MIT WPU
Introduction
Everyday billions of users perform a legally binding action in a few seconds by just clicking on the ‘agree’ button. In the past few decades clickwrap agreements have been common. Clickwrap agreements first appeared in the late 1990s. Billions of users around the world use the “agree” button without reading long and complex terms of service. These type of contracts usually don’t have individual negotiation and works around ‘take it or leave it’ concept’. Applications use visual tricks, bright highlights and often pre ticked boxes to make the process faster and force quick agreement to rush the users. Traditional contracts required mutual meeting of minds to form them. Since the digitalization of contracts came into being, users don’t give it much importance. Thus this has caused a disconnect between legal theory and consumer reality. While courts enforce these one sided contracts under guise of procedural compliance, often hidden arbitrary clauses, broad data sharing mandates are hidden between these thousands of words of fine print. This inadequacy in modern contracts leaves the consumer vulnerable.
This article argues that ‘click to agree’ rely of legal fiction that prioritizes corporate efficiency over true agreement, making it essential for courts and lawmakers to step in and protect everyday users. To prove this, the article looks at how digital contracts evolved, how courts decide if users got fair warning, and what reforms can make online agreements fair again.
II. Body
A clickwrap contract is a popular type of digital contract. An agreement between the user and the company. Some of the salient features of the clickwrap contracts are:
Clickwrap contracts are unilateral agreements.
Clickwrap contracts contain ‘I accept’, ‘ I accept’, ‘ I consent’
Clickwrap Contracts usually relate to terms and conditions, usage, privacy related terms, or End-user license Contracts (EULS).
Users can opt-out of the contract by clicking on the cancel button, I disagree, or by closing the sites.
Legal framework
Clickwrap agreement don’t have explicit laws that govern it. They are governed by Indian Contract Act, Information Technology Act, Indian Evidence Act, DPDP Act and Consumer Protection Act.
The Indian Contract Act states that a contract should have a legal object and legal consideration. Meeting of minds is essential to understand whether the other party is aware of the terms and conditions present in the contract. Under section 2(a) and 2(b), displaying terms on a screen would constitute to an offer and the pressing of the button ‘I agree’ would be acceptance of that offer. Under section 13, consent is only valid when the two parties agree to the same thing in the same sense. Because clickwrap contracts are standard-form agreements of adhesion, courts examine whether automated assent reflects genuine consent or forced compliance.
Information Technology Act section 10 A, formally recognizes electronic contracts as valid contracts. It cannot be deemed unenforceable solely because of its electronic form.
Consumer Protection Act, 2019 was introduced to safeguard against oppressive standard form agreement. Under this act the terms of contract, if unreasonable can be challenged as unfair contract terms or unfair trade practices, making mandatory clickwrap clauses vulnerable to judicial strike down.
The DPDP Act, for contracts involving personal data requires strict consent requirements. The consent must be free, unconditional, specific, and informed. While this statutory machinery provides clear legal recognition for electronic agreements, its actual effectiveness depends on how Indian courts evaluate “notice” and “assent” when disputes arise.
Judicial Interpretation ( Case Analysis )
Validating Online Contracts
Trimex International v Vedanta Aluminium
Indian courts completely support the idea of online contracts which does not require a pen and paper signature. In this case, the supreme court’s ruling made email contracts fully legal and binding, even without physical contract was never signed. This case showed the importance of online contracts, and gave it a foundation in India. And hence online contracts have same legal weight as physical contracts.
DDIT (IT) v. Gujarat Pipavav Port Ltd
In this case, the tribunal made it clear that a company cannot hold a person to an agreement unless they can prove they had a clear, direct notice of rules. While the Trimex case, says that digital contracts are legal and binding this case adds a safety rule that companies cannot force, sneaky and hidden clauses if they didn’t make it clear before you clicked the button.
Courts can strike down unfair fine print
LIC of India v Consumer Education & Research Centre
In this case, the court held that when a massive organization forces a take it or leave it contract on a weaker party, any unfair and oppressive clauses are illegal and void. Freedom of contract is meaningless when there is unequal level of power among them. This is the strongest tool against unfair clickwrap contracts. It proves that just because the consumer clicked ‘I agree’ it doesn’t give a company total freedom to hide unfair clauses.
Tamil Nadu organic ltd. v State Bank of India
Held that large institutions cannot use pre written standard forms to strip away a consumer’s rights especially when the consumer doesn’t have any chance for negotiation. Hence the courts wouldn’t allow companies to hide unfair clauses just because the consumer clicked ‘I agree’.
Even when the courts intervene during such matters it isn’t the adequate solution to the problem, which brings us to why the whole system needs a fix.
Critical Evaluation
Despite statutory recognition and judicial safeguard, it mainly relies on legal fiction: treating a click as informed consent.
Behavioral Reality
Most users do not find the time to read long digital agreements with legal jargons. Courts assume that people read these long agreements. Due to the massive increase in the amount of digital agreements it’s common to skip reading them. This gives companies the chance to hide complicated and malicious clauses, making it unfair for the consumer.
UI/UX Design Manipulation
Online platforms deliberately make designs that will force the consumer to click. This type of consent wouldn’t be called as informed consent. These companies use manipulative designs to trap the consumers.
For example: Highlighting bright the ‘I agree’ button and greying the opt out options.
Forcing the users to accept unfair clauses just to access basic services.
Hiding class-action waivers, pre-dispute arbitration clauses, or silent auto-renewals deep inside thousands of words of legalese.
Recognizing this issue the Central Consumer Protection Authority issued Guidelines for Prevention and Regulation of dark patterns 2023. . These guidelines explicitly ban manipulative UI practices under the Consumer Protection Act, 2019. To bridge this gap between legal fiction and real world fairness, we can look at comparative models
Comparative Analysis
The European Union
The European Union provides the best standard for online platform fairness by addressing the collection of consent from the user:
GDPR & Consent Specificity: According to the General Data Protection Regulation, consent must be freely given, specific, and unambiguous. Bundling is forbidden. It is impossible to provide a subscription to social media while obligating the user to accept marketing information.
DSA & Dark Pattern Bans: The Digital Services Act, Article 25 – platforms may not use design features that may mislead or obstruct the user. The specific techniques that violate this article are ticked checkboxes by default or small cancel buttons drowned in the background of the screen.
The United States
Recent US trends recognizes a large shift towards aggressive enforcement.
The Federal Trade Commission
The Federal Trade Commission (FTC) is taking action against corporations that employ “dark patterns” user interface designs, in which unsubscribing requires a multi-step phone call while subscribing only takes one click. Judicial Rejection of Browsewrap: Unlike the UK, US courts make a sharp distinction between terms imposed by a clickwrap and browsewrap. In the US, browsewrap terms are routinely invalidated as they do not provide sufficient consumer notice or consent.
Hence we come to the conclusion that formal legal warnings are no longer enough. For India to be aligning with the best practices requires moving from traditional legal practices and towards design based consumer protection. If India builds on these global insights we can successfully have fair, transparent and real agreements.
III. Proposed Reforms
Concrete Regulatory and Design Reforms
To ensure that digital contracts capture the true intent of the parties, the law should require specific UI/UX design standards, including:
Standardized “Opt-Out” and Neutrality Design: Digital interfaces should make rejection as prominent and attractive as acceptance. In other words, the UI/UX should not make the “I Agree” button more prominent or appealing than the “I Do Not Agree” option.
Standardized “Nutrition Labels” for Terms: Instead of making users scroll through tiresome legal jargon to find out what they are agreeing to, the interfaces should use standardized, mandatory 1-page summaries of the most important terms, including data usage, auto-renewals, dispute resolution mechanisms, and liability limitations.
Prohibition of Unilateral Modifications: Any terms that allow the business to amend the contract on its own initiative should be void as a matter of law.
Statutory and Regulatory Enforcement
The Central Consumer Protection Authority (CCPA) should take a lead in enforcing the Guidelines for Prevention and Regulation of Dark Patterns (2023) by auditing major digital platforms and imposing penalties on those that use deceptive user interfaces. Courts, on the other hand, should apply the Digital Personal Data Protection (DPDP) Act, 2023, when considering disputes related to digital consent. In particular, the judiciary should take a strict view of the requirements set out in Section 27(1) of the DPDP Act, 2023, which stipulates that consent to processing personal data must be free, specific, and informed.
Conclusion
The “click to agree” mechanism was designed to enable commerce to happen in the digital landscape with increased ease and speed. However, this has come at the cost of the user’s autonomy, as the practice provides an unfair advantage to corporations by making them the sole beneficiaries of the contract’s complexity. Indian statutes such as the IT Act and the Indian Contract Act, along with the judiciary’s active role in challenging unconscionable contractual terms, do not fully protect the consumer. The only way to truly protect the consumer in a digital marketplace is to recognize that in such an environment, interface design equates to contract terms, and therefore, anti-consumer dark patterns should be prohibited, and summary contracts should be made mandatory, with neutral interfaces.
Reference(S):
Cases
Trimex International v Vedanta Aluminium (2010)
DDIT v Gujarat Pipavav Port (2017)
LIC of India v Consumer Education & Research Centre (1995)
Tamil Nadu Organic Private Ltd. v. State Bank of India ( 2014)
Legislation
Indian Contract Act 1872 (India)
Information Technology Act 2000 (India)
General Data Protection Regulation, Regulation 2016/679 (EU).
Digital Services Act, Regulation 2022/2065 (EU)
Secondary Sources
Enforceability of Shrink Wrap and Click Wrap Agreements in India, R&D Law Chambers (July 28, 2025)
Clickwrap v/s Browsewrap: Key Differences & Legal Impact, Privacy Policies (Oct. 10, 2022)
Shrashti Dubey & Rebekah Hanna Varghese, Clickwrap Agreements in India: The Legal Stance?, 3 Indian J. Contemp. Legal & Soc. Issues 1 (2022).
