Are there any legal requirements regarding the display of a Terms & Conditions link? Does it need to be out of flow (popup, banner), or actioned ("I agree" checkbox)? Any specifications on font size compared to surrounding font, like there is on some other types on information on mediums?
This question has been covered in UX.SE, but the answers came more from the "better to be safe than sorry" angle, rather than actual law
In Australia, the overall representations of the website must not be misleading or deceptive when it comes to the provision of goods or services, in order to comply with Australian Consumer Law.
The length of the terms matters. In a very recent case against a homeopathy website, it was noted that (at [47]):
The terms and conditions were exceedingly lengthy and it was highly unlikely that any visitor would trawl through them merely to access another part of the Website for free.
In this case the significance of the length was not specifically tested.
The position of the terms also matters. In another case against a major retailer, it was noted (at [37]) that the conditions visible:
a user accessed a link at the bottom of each page of the HN Website titled “Website Terms and Conditions”, such that it was unlikely either condition would be found by a normal reader reading the HN Catalogue or viewing the HN Website
This specific matter related to a very specific claim made by the retailer, and so I can't say whether it applies in general to website terms and conditions.
Apart from the above cases, I can't find any good examples where the exact form of a website's terms have been considered in determining a case.
There are some United States cases referred to in the Wikipedia article for browse wrap. These seem to have been judged in favour of the website operator only when the terms are conspicuous, and/or when the user has had repeated exposure to them (or a link to them), for example over a number of pages. Even where the terms are linked at the bottom of the website, and a user is not required to scroll to the bottom to use the site, terms have been found unenforceable.
As far as I know, there's no statutory requirements - in Australia, at least, and quite likely anywhere else - that specify the manner and form that disclaimers may take.
