Website Design as Contract

Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. Could these designs be part of the contract between websites and users? A draft of my new article argues just that by developing a theory of website design as contract. This article is coming out in Volume 60 of the American University Law Review later this year. In sum, I argue that in an age where website interactivity is the hallmark for many sites, courts must re-think what constitutes an online agreement. This is particularly true with respect to user privacy.

The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of use, or if these features induce reliance, they should be considered enforceable promises. For example, the ability to increase privacy settings could be legitimized as an offer by the website to protect information. A website design could also render an agreement unconscionable if it manipulated, exploited, or confused a user. Finally, website design could serve as evidence of a subsequent agreement, or “operational reality,” between the parties. By providing a theory of website design as contract, this article attempts to shift the focus of online agreements away from unread standard-form legalese to an approach that more accurately reflects the agreement between websites and users.

You can download a copy of the draft here. Your comments are greatly appreciated.


Really fantastic article.
I am glad you touched on the "unconscionable design". As a web designer and now e-business start up consultant, I have seen excellent contracts that were little more than an outright lie, due to deceptive design.

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