Are your mobile game's Terms of Use enforceable

Most mobile games have terms of use, and for good reason. Terms of use can help a game company avoid distracting, time-consuming, and expensive litigation. Terms of use can be a game changer by helping a company avoid class action litigation. They can also be used to ensure that any litigation is in a convenient location for the company. Some courts even allow the company to include a provision that the loser must pay the other side’s fees in any dispute. So, carefully crafted terms of use are invaluable, when they are enforced.

What many mobile game companies do not know is that many terms of use are likely not going to be enforced by a court.  The problem is that the terms of use are not designed into the game in a way that makes them enforceable. This is especially true for mobile games. Whether a court will enforce a terms of use provision often turns on whether the mobile game uses a “browsewrap” or “clickwrap.”

Distinguishing browsewrap from clickwrap

Clickwrap agreements are ubiquitous, occurring on many major websites – they require a consumer to “click,” to indicate that they agree to the terms of use, before the consumer can access the website’s core functionality (for example, to purchase an item).

Browsewraps, on the other hand, do not rely on any affirmative “click” by the consumer. Instead, they are placed on a website or in a mobile application, such as a game, and the consumer is expected to go to the terms and review them.  Sometimes a consumer will be notified that their use of a game is contingent on their agreement to the terms of use. More often, no such disclosure is provided. Browsewrap is a common feature in mobile applications, because consumers often want to play their game as soon as it downloads.

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.

The terms of use can be an arrow in a litigation team’s quiver, but only if the terms of use are enforceable. Courts are growing ever more reluctant to enforce terms of use that do not conspicuously place the consumer on notice that they are specifically agreeing to certain terms, including such things as waiving their right to pursue class action claims before a jury.  Courts view evidence of a “click” most favorably.

What Should Game Companies Do?

Depending upon the specific game and context, companies should consider the following:

- Require affirmative consent to the terms of use with a “click.”

- Use language manifesting affirmative consent, such as “Yes, I agree to the terms of use,” at the point of click.

- 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.

- Provide a hyperlink, accessible through the relevant platform at the point of click, to the terms of use.

- 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.