Analytics Publications

Transactions on the Internet are usually executed using the click-wrap construct. This is a form of concluding an agreement when a party accepts the terms of the agreement by clicking on the “I Agree” button or in another similar way. 

In the countries of the European Union, such agreements are regulated by E-Commerce Directive from 2000, and in the USA - by the Uniform Commercial Code. The international legal framework is the 1996 UNCITRAL Model Law on Electronic Commerce and the UN Convention on the Use of Electronic Communications in International Contracts, which was adopted by General Assembly resolution 60/21 of November 23, 2005. <...>

According to the meaning of the acts, such agreements should sufficiently allow establishing the consent of the parties to a specific transaction. It is important whether it is possible to familiarize yourself with the terms of the contract.

In Russia, such electronic contracts are becoming more widespread. According to the research company Data Insight, the volume of the e-commerce market in Russia amounted to $ 30.6 billion in 2019. The number of online orders increased by 10% compared to 2018.

Since October 1, 2019, the new rules of the Civil Code have been in force, where the way to conclude click-wrap-contracts is fixed. The law expressly provides that a written form will be respected in relation to an electronic transaction if the resource with which it is concluded allows it to be stored on a physical medium (Federal Law of March 18, 2019 No. 34-ФЗ “On Amendments to Parts One, Two and Article 1124 of the third part of the Civil Code of the Russian Federation ”).

Practice recognizes the existence of click-wrap contracts. Difficulties arise with proving the fulfillment of obligations, accepting acceptance or identifying the parties to the transaction.
Dmitry Borodin, VEGAS LEX Senior Associate, gives practical advice to reduce risks in court and not be left without protection:

• the client should not have the technical ability to use the service without putting a checkmark and familiarization with the terms of service;
• the text of the conditions should indicate what actions are considered "acceptance";
• the client should be able to save the text of the terms of service with which he agrees;
• It is recommended that the client’s obligation to take reasonable measures to monitor changes in the terms of service, as well as the procedure for reporting such changes, be included in the text of the conditions;

• It is recommended to include a link to the terms of service in emails sent to the client;
• provide the ability to identify the counterparty. For example, the use of two-factor authentication (by phone number or other identifiers).

You can find the full version of the article here: https://pravo.ru/story/221820/