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In the context of doing business electronically, filling out digital contracts (such as via DocuSign) or for accepting terms of use on a website ...

Is there any difference from a legal standpoint between the terminology of

  • "Click here to agree" vs
  • "Tap here to agree" vs
  • "Press here to agree"

Can it be reasonably argued that someone on a touch screen with no mouse could not technically "click" the button (but could only "tap") and therefore did not agree? Given in the world of programming these are distinctly different events ("click" is not a "tap"), does this translate the same into the legal realm?

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Unless the words are defined by the terms and conditions or a directly applicable law, a jurisdiction is likely to ascribe them their meaning as determined by common usage.

They are all context-specific actions which should have the same outcome: turning a user action implying assent to some statement, into a electronic record of that action.

A reasonable person would substitute the appropriate term for that action based on the context it occurs in. For example, a click is not a tap, so where click is said but the action used is in fact a tap, we should read click as meaning tap in that case.

It would not be reasonable to argue, on the other hand, that only a click but not a tap can be used to assent to the statement or to show acceptance of terms and conditions. This would make it impossible to determine whether a person had actually clicked or only tapped based on the response - that response is the same for both actions, and hence the previous argument applies against it.

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When you fill out the document and submit it, you are demonstrating your assent to the terms. By arguing that you didn't click the button, you touched it, you are are arguing that you did not assent to the terms. It's going to be pretty hard to show that you did not assent to the terms after you went through the trouble of filling out the thing. You probably also got an email confirming the submission. So the the totality of the circumstances will make it hard to argue that there was no meeting of the minds.

That said, there are certainly confusing workflows in software, and I can imagine a scenario where you fill out a form, decide to cancel, and accidentally hit the wrong button or take the wrong action. It's going to be a really specific set of facts where a touch differs from a click, but sure, the difference could be significant. Especially if the button said, "touch to cancel, swipe to submit."

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  • It's not my job to show I didn't sign a form despite filling in the details, if in fact I did not sign it, regardless of whether I'm sent a letter saying "thanks for signing the form!" It would be the responsibility if the person claiming I signed the form to actually show I signed it - not my job to show I did not. The digital equivalent is well, equivalent.
    – Nij
    Oct 24 '16 at 11:07

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