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During sign-up, the user must agree to the terms and conditions and privacy policy.

Is it sufficient to state: "by registering, you agree to our terms of service and privacy policy" (where the words "terms of service" and "privacy policy" are hyperlinked to their respective documents, and where the blurb is placed directly above the "Sign Up" submit button)

Or, does there need to be a check box so that the user must explicitly click it to indicate agreement?

I see both of these scenarios all over the web. I would prefer not to have the user click something e.g. to reduce friction at sign-up time.

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  • While on this subject, is that actually taken into account? In Brazil we usually have to sign each page in a written contract because most of them are signed without any actual reading and there's precedent of contracts being thrown out due to lack of knowledge to one of the parties. – Marco Aurélio Deleu Nov 1 '15 at 17:49
  • I think this is one of those things where the law might differ depending on what jurisdiction we're talking about. At least, that's something to perhaps investigate a bit if you're going to use that same website sign-up page for visitors who may be from every nation/state/province. For instance, the privacy protection laws of, say, Germany might require an opt-in checkbox, while the laws of the State of New York, USA might allow the hyperlinks-only approach. (Not saying that either one of those things is or is not true; just a hypothetical example.) – mostlyinformed Nov 2 '15 at 18:19
  • Closely related: What are the legal requirements for displaying a Terms & Conditions link on a website? – unor Dec 26 '15 at 1:19
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@Marco Aurélio Deleu and @mostlyinformed left comments which form the essence of this answer.

I am posting an answer as I have revisited this subject with all of the GDPR stuff going on lately.

Bottom line is that the answer is highly dependent on jurisdiction.

With GDPR, I understand that you can't rely on technological methods of geo-locating someone (e.g. GDPR applies to citizens of the EU, regardless of where they are) so we see many companies applying the most cautious / most strict approach globally (which is probably good in general). Under GDPR, Browse-wrap agreements (e.g. by using... you agree) are no longer sufficient and I expect other nations will "catch up" with the EU and implement similar laws eventually.

At this point I think the most common legally compliant methods seen now are sites showing a banner at the top or bottom saying something like "our terms are updated" along with a button to click indicating agreement (and a "x" to close it without agreement).

p.s. I encourage anyone with legal experience to correct any points I have made which are not correct.

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