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Many websites offer contracts to their visitors by "browse-wrap" (making an offer by notice, where not not using the site signals acceptance) or click-wrap (making an offer where clicking "I agree" or a similar provided UI element signals acceptance).

But a web site operator is not 100% in control of what the user actually sees. Users often have ad blockers, and it is common for those to now also block cookie consent notices. It would be technically feasible and possibly legally desirable to have some kind of "contract block" browser extension that explicitly tries to prevent the user from doing anything that would constitute agreeing to a contract.

For a browse-wrap contract, if the visitor did not have actual notice of the existence of the terms because their device categorically refuses to accept such notice, is the contract still formed? Would the web site need to be notified that the browser has refused to forward the notice to the user in order for it to legally count as not delivered? Or is this approach just dodging service/willful blindness on the information superhighway? Or does it depend on whether the user is deliberately making their device do this, versus whether this is a feature that the user is unaware of?

For a click-wrap agreement, if the user never actually takes the action that is specified to form the contract, is the contract still formed? Imagine if the user's browser has been programmed to replace all the "I agree" buttons with legally distinct "I reject" buttons that fire the same events. The offered contract says it can be accepted by doing a particular thing, but that particular thing is not done. Is the contract formed or not? Would the user's system somehow have to advertise that it is incapable of displaying "I agree" buttons, in order for that highly unusual configuration to be legally recognized?

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    – Dale M
    Sep 8, 2023 at 22:43

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The user did have notice

The just chose to prevent themselves from seeing it. The user is in control of their browser settings.

For a browse wrap, the onus is on the website to prominently display that the use is subject to terms and provide links to those terms. They did that. That the user deliberately chose to keep themselves in ignorance does to change that note was given. It is analogous to a person placing a letter from their electricity company changing the terms in the bin unopened - notice has been provided and the user has accepted the change.

The poison for an automatically completed or misrepresented click wrap is the same.

I actually had to rule on a similar situation. An organisation had configured their email system to delete any email with a Word document attachment as a security precaution. It did that without notice to either the sender or receiver. The metadata showed that the email had been in the system for 1.6 seconds. The law in is that an email has been delivered when it is available for retrieval from their system by the recipient. For 1.6 seconds, it had been, therefore it was successfully delivered and consequences flowed.

The user, by automatically accepting any and all brows/click wraps has consented to enter the contracts - effectively they have made an offer to the world that if you send me one of these, I'll agree to it.

The user may be able to disclaim responsibility if the “feature” was actually third-party malware or if they genuinely didn’t know what was happening. However, you are presumed to be responsible for everything on your computer: saying the child porn isn't yours wont keep you out of jail.

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