Website Design as Contract

Abstract

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. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. 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 shifts the focus of online agreements away from unread standard-form legalese to an approach that more accurately reflects the agreement between websites and users.

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