Few people read them, but some online agreements are enforceable, and some aren’t; it’s a mess.

Just 3 days ago I wrote about two conflicting decisions concerning the enforceability of online contract provisions that do not require consumers to affirmatively click an “I agree” button. Well, today techdirt points me to a new court decision invalidating such a provision: according to MediaPost, the court “ruled that Internet retailer Overstock can’t enforce the manadatory arbitration agreement set out in its online terms and conditions because there is no evidence that consumers read the policy.” According to the decision, the plaintiff  ”lacked notice of the terms and conditions because the website did not prompt her to review the terms and conditions and because the link to the terms and conditions was not prominently displayed.”

As I wrote the other day, under all the court decisions I am aware of online sellers can ensure that their contracts are not invalidated on these grounds merely by requiring the affirmative act of clicking on an “I agree” button. As I read all of these decisions, online agreements that require the consumer to click “I agree” are enforceable despite the fact that consumers generally do not read the agreements.

To rule otherwise would overturn ages of decisions imposing on the consumer a “duty to read” that binds them to agreements they express agreement to even if they don’t understand what they are agreeing to. It would also leave open to dispute any online transaction that the consumer decided he or she didn’t like, a result that would mire our economy and courts in a mess to deep to contemplate.

There is a solution, however, and it’s one that hit a high gear 50 years ago only to peter out in the wake of our more recent passion for unregulated free markets — consumer protection laws that dictate what terms can and cannot be imposed on consumers. As the situation now stands, we are left with a patchwork effort to find traditional contract rules to come up with fair results (such as invalidating mandatory arbitration clauses that deprive consumers of any meaningful remedies for wrongdoing by online sellers).

In the meantime, I can only repeat what I wrote the other day:

Online sellers: if you want to be maximize the likelihood your agreements are enforceable, do what most online sites do — require your customers to click on a button that expresses their agreement before the transaction is complete.

Online buyers: be careful. Don’t believe that you’re getting what you think you’re getting. You’re only getting what the fine print says you’re getting. But if you do get screwed, remember too that even when you sign something it might be so unfair it is unenforceable.