When participating in online gambling a claimant was required to perform a click-wrap procedure confirming that she had read and agreed to be bound by the three sets of terms and conditions which, one way or another, were accessible by a series of hyperlinks or drop-down menus. The player would need to read about and accept the terms and conditions. If the player chose to decline, they would be signed out of the site and unable to play online.
The legal test to be applied is whether the gambling company did what was reasonably sufficient to bring the various terms and conditions to the notice of the player of the game.
There was nothing on the screen which highlighted or otherwise drew specific attention to particular terms. There was nothing onerous nor unusual about the various contractual provisions on which the company sought to rely. Anyone playing the game would expect there to be some rules governing how the particular game was played and what they needed to do in order to win. The terms were reasonable and commonplace and included a term that the play would be invalid if the outcome as displayed on the screen did not match the result that was predetermined by the computer system.
The court did not accept that forcing a consumer to go through the exercise of reading the terms and conditions before playing would make it more likely that they would be read. Being forced to scroll down through several pages of “small print” before it is possible to click the box or button accepting the terms, is more likely to cause consumers to become fed up and quit the website. One cannot force someone to read the terms and conditions if they cannot be troubled to do so.
That does not mean that following the click-wrap procedure would be sufficient to incorporate all the standard terms and conditions in every case of an online contract for goods or services. There may be cases where the consumer is required to click on to so many hyperlinks in order to find the relevant terms that it cannot truly be said that they are readily or easily accessible.
Although none of the terms was individually negotiated, there was no significant imbalance between the parties in relation to the winning or losing terms, which were straightforward and binary. The online gambler was bound by the terms she accepted by the click-wrap process.
In South African law, similar principles would apply. Consumer contracts must however be looked at in relation to the protection afforded to consumers by the Consumer Protection Act, 2008.
Joan Parker-Grennan v Camelot UK Lotteries Limited [2023] EWHC 800 (KB)