Distinguishing browsewrap from clickwrap
Why Does It Matter?
Many games, especially those that are free to download, contain opportunities for consumers to make in-game purchases – gems, coins, extra moves, etc. Disgruntled purchasers have been known to sue. Some games are also doing new and exciting things with geolocation that may also result in consumer litigation over privacy concerns.
What Should Game Companies Do?
Depending upon the specific game and context, companies should consider the following:
- Use a font that is legible on all relevant platform devices (i.e., font sizes must not be so small on a mobile device as to be illegible).
- Require the “click” before the user can play the game or make a purchase.
- Track every click back to a verifiable account, so that if you ever need proof that a specific consumer consented, you have it.
- Think very carefully before relying on a browsewrap.
There is no question that clickwrap is more cumbersome to the consumer and more burdensome to the company. There are ways to alleviate these concerns, by working with counsel to draft the appropriate approval process for your game to minimize risk and maximize consumer satisfaction. Although the effort may seem burdensome, it could be a game changer if you are faced with litigation.
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