Cultural Institutions and Website Use Restrictions: Contract or No Contract?
Pauline McBride, University of Glasgow
Pauline McBride, Cultural Institutions and Website Use Restrictions: Contract or No Contract?, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.
‘I read all the small print on the internet and it made me want to die’ (Hern 2015). So wrote Alex Hern, technology reporter for the Guardian, who, for a week, committed himself to actually reading terms and conditions. Hern’s recommendation: don’t read the terms and conditions.
It is a truism that users do not read online terms and conditions (Out-law.com 2016). What is more, many legal commentators maintain that unless users have ‘time to waste’, reading terms and conditions is ‘wrong-headed’ and irrational (Woodward Jr 2014, 199).
Not reading the terms and conditions may be the rational choice for users in many online settings but not in the setting explored by this project. Even the least accessible terms and conditions are likely to be easier to understand for the average user than the manner in which copyright law shapes interactions between user and cultural institution. While users may be uncertain as to the legal status of terms and conditions, the terms and conditions at the very least signal the institution’s wishes in respect of the reuse of content. Moreover in the context of reuse of content from websites operated by institutions based in countries other than the country where the user is located, the terms and conditions represent a fixed point or constant whereas the relevant rules of copyright law will vary according to the territory in which protection is claimed. If users want to lawfully use and display content from the websites of cultural institutions, the terms and conditions are the obvious first port of call for determining what uses may be lawful.
This essay is concerned with one aspect of the user’s perceived or actual risk in use of content forming part of a museum’s online collection. Using the terms and conditions of the institutions selected for this project as examples, it explores whether such terms and conditions are likely to be treated as valid contracts having regard to contract formation rules.
CONTRACT OR NO CONTRACT: WHY DOES IT MATTER?
Most of the cultural institutions featured in the DAYOR project use terms and conditions as a means of setting out restrictions on the use of the contents of their websites.
If the terms and conditions have no contractual effect then they will operate as the floor but not the ceiling of lawful use. In other words (so far as claims by the museum are concerned) the terms and conditions provide comfort for the user in relation to uses within the scope of the permissions set out in those terms and conditions. Having signaled permission for such use the museum cannot claim that the use was unauthorized. However, the user may also rely on the relevant copyright exceptions so as to legitimize uses not permitted by the terms and conditions.
Where on the other hand the terms and conditions do have contractual effect, then, ordinarily, the terms and conditions will operate as both floor and ceiling of lawful use. The contract will govern all aspects of use of the content. On the face of it such an outcome is desirable. The existence of a contract might be thought to imply a measure of agreement between the parties about acceptable use of the content. Moreover, especially where the user and the museum are located in different territories, governance by contract would seem to secure (relative) certainty and simplicity: in particular the implications of the territorial character of copyright protection (and exceptions) need not be addressed.
In reality however, if there is user consent to the terms and conditions deployed by the websites of cultural institutions, it is a pale, washed out form of consent. The terms and conditions are offered on a take-it-or-leave it basis: if these are contracts, they are contracts of adhesion where the user has no opportunity to negotiate the terms. (Sim 2013, 26-30). What’s more, cultural institutions can and very often do use the mechanism of contract to prohibit uses of content that would otherwise be permissible by law. Certainty and simplicity may be achieved at the expense of users’ freedoms in re-
This essay does not address whether the question of users’ freedoms to use online content is best resolved through the vehicle of contract or by reference to the patchwork of protections (and derogations from protection) afforded by copyright law, having regard to its territorial dimension. It does argue, however, that the user should at least be in a position to know whether or not the terms and conditions proffered by the website have contractual effect and that the time has come for a push for clarity on this issue.
CONTRACT OR NO CONTRACT: IS THERE AN OFFER?
Contract law dictates the criteria necessary for formation of a contract. Generally, the first and most important requirement for a contract is the existence of mutual agreement between the parties to the contract (Schlesinger and Bonassies 1968, 71).
Many jurisdictions rely on the notion of offer and acceptance to determine whether or not mutual agreement exists (Schlesinger and Bonassies 1968, 74; Wattendorf 2002, 177; Furmston and Tolhurst 2010, 2.01). In such jurisdictions it is generally accepted that the recipient of the offer must have notice of the offer if the offer is to be effective (Bar et al. 2009, 114-15). Notice may be actual or constructive.
The requirement for notice of the offer implies more than notice of terms. The recipient of the offer must also have notice that such terms form part of an offer; that is, that there is/exists an ‘expression of willingness to contract.’ (Peel and Treitel 2011, 2-002)
The implications of the twin aspects of the requirement for notice of an offer were explored in Hines v Overstock. In its judgment the United States District Court for the Eastern District of New York expressed the view that in the absence of evidence that the user had actual notice of website terms and conditions, the user could not be contractually bound where the terms and conditions were not prominently displayed and the website did not prompt the user to review the terms and conditions. Hines’ uncontested evidence was that the hyperlink to the terms and conditions was not visible on the website except by scrolling down to the bottom of the screen. Most of the websites featured in the DAYOR project likewise present the hyperlink to the terms and conditions in such a way that the user must scroll below the fold to see the hyperlink.
The Court also indicated that labeling a hyperlink as ‘Terms and Conditions’ was insufficient to prompt the user to review the terms: instead the hyperlink might have to be accompanied by other text signaling that the terms were intended to have legal effect. The approach taken by the Court in this case is in line with a trend seen in other US cases.
More often than not the user who makes a diligent search for website terms and conditions will manage to locate them. In that case the user will have actual notice of the terms. However actual notice of the terms is not to be equated with actual notice of an offer. Some website terms and conditions contain clear statements to the effect that the terms and conditions are intended to form part of an agreement that has contractual effect (JP Getty Museum). Others do not: on the contrary the terms may be couched in language that suggests they are nothing more than a statement of law or of the museum’s policy, having no contractual significance (MKG, Hamburg).
As a result, and even where the user makes a point of locating the website terms and conditions, it is often unclear whether the terms and conditions, objectively construed, form part of an offer. If they do not, then on the face of it there can be no consent, and without consent there can be no contract.
Even in jurisdictions where the contract formation rules emphasize the requirement for mutual consent and treat the offer-acceptance mechanism as only one means of expressing consent, a failure to sufficiently flag that terms and conditions are intended to have contractual effect would seem to be fatal to the inference of a contract.
CONTRACT OR NO CONTRACT: IS THERE ACCEPTANCE?
Let us suppose that the website can establish that the user has actual or constructive notice of an offer incorporating the terms and conditions. The user must also accept the offer for a contract to be formed.
In most of the websites featured in the project, the user is not required to expressly consent to the terms governing use of the website content. If the user consents at all, the consent is implied through conduct in accessing, browsing or using the website or its content.
While the contract formation rules of many jurisdictions (Schlesinger and Bonassies 1968, 175-76; Furmston and Tolhurst 2010, 4.19) – including those of all EU Member States (Bar et al. 2009, 311) – permit acceptance of an offer by conduct, the conduct must be such as to enable the Courts to draw an inference of acceptance.
Where money changes hands, the legal rule that consent may be inferred from conduct operates to ensure efficiencies in market practices.The difficulties associated with drawing inferences from fact-situations are mitigated since a monetary exchange ordinarily signals an intention to contract. In these situations the question as to whether a person consents to particular terms usually centres on the question of whether the terms were brought to that person’s attention before acceptance took place.
Where on the other hand, the payment ‘cue’ is absent, the question about inference of consent must address why any contract should be inferred let alone a contract on particular terms. The complexity of this question may be illustrated by reference to English law.
Under English law for a contract to be inferred from conduct, the conduct must be unequivocally referable to the contract that is proposed (Furmston and Tolhurst 2010, 4.09). In The Aramis, Lord Justice Stuart-Smith explained that if the conduct is ‘equally referable to and explicable by … [the parties’] existing rights and obligations’ no contract can be inferred. Similarly in FW Farnsworth Ltd v Paul Lacy, Mr Justice Hildyard expressed the test for acceptance by conduct as follows:
[T]he person who alleges inferred or implied acceptance must show that the benefit invoked, being the act relied on as giving rise to the inference of acceptance, was only available pursuant to the contract in question, and that the invocation of that contractual right was in unequivocal terms, such as to be referable only to acceptance of that contract.
In effect the contract formation rules of English law limit the situations in which acceptance may be implied by insisting on some form of exchange between the parties to the agreement. The exchange is a kind of proxy for express agreement. The exchange can take many forms: usually the exchange will be goods or services in exchange for money but money need not change hands. An exchange of reciprocal promises is sufficient as is an exchange of goods or services for a promise.
If website terms and conditions are truly contractual then what the user gives is a promise to the website to do (or not do) the various things set out in the terms and conditions and to give up rights or grant obligations according to its terms. The real question concerns what the website gives in exchange, because if the answer is ‘nothing’ then no contract can be implied.
The question of what the website brings to the table is a factor of the mesh of rights, duties, powers, and freedoms possessed by the website and the user in relation to each other (see Benkler 1999, 432). If, when all the rocks are banged together, it transpires that the user in a particular jurisdiction has no right or privilege to make use of the website and its content without permission, the grant of permission by the website will fulfill the exchange requirement. If on the other hand the user already holds a right or privilege to use the website and its content, there is no basis for the implication of consent. As a result where (as in the case of the terms and conditions of the websites featured in this project) user consent can only be implied from conduct, the nature of the rights or privileges held by the user is key.
The scope and character of the user’s rights and privileges in relation to use of a website and its contents will of course vary according to the applicable law. Thus while many jurisdictions afford users certain rights and privileges in relation to uses of copyright works – such as the images made available on a museum website – such rights and privileges may be of little avail if, in those jurisdictions, the user holds no right or privilege to access those websites without permission. In such jurisdictions permission for access to the website will supply the exchange requirement and clothe the terms and conditions with contractual effect.
But, how difficult it is for the user to determine whether his use of website content will trigger consent where acceptance can only be inferred from conduct! In order to determine his rights and privileges in relation to website content he must first assess which areas of law may impact on his use of the website: this may include law relating to computer misuse, unfair competition, unjust enrichment, misappropriation, the European database right (for EU Member States), as well as copyright. He must work out his rights and privileges in relation to use of the website and its contents having regard to the aggregate impact of all such provisions. Where the user and the website operator are based in different territories, the user must carry out this exercise having regard not only to the law of the territory where he is habitually resident but such other laws as may be applicable under rules of private international law.
In the context of dealings with no foreign law element, the task of determining whether an inference of consent is triggered by conduct is beyond the reach of most users. In the context of dealings with a foreign law element, the task is well-nigh impossible.
REVIEW AND CONCLUSION
The lack of clarity around the contractual status of the terms and conditions of museum websites is unsatisfactory. While uncertainty as to the contractual status of such terms and conditions may impact on both website and user, websites have control over the manner of presentation of the terms and conditions while the user does not.
There are simple steps that museums could take individually to provide users with clear information as to whether or not their website terms and conditions are intended to have contractual effect. Such information could be provided not only in the terms and conditions themselves but also in text located next to hyperlinks to the terms and conditions.
There are also steps that museums could take collectively to indicate to users (including foreign users) whether or not the terms and conditions are intended to be contractual. Museums could co-operate to develop user-oriented best practice guidelines regarding the licensing of their online content, including standard approaches to signaling whether terms and conditions are intended as contracts.
Where the terms and conditions are intended to have contractual effect, museums could lead the way in abandoning reliance on the inference of user consent through conduct. Consider the model adopted by the Rijksmuseum: users may view the content without being presented with terms and conditions but may only download the content after completing a subscription process. In a subscription only model it is readily practicable to incorporate so-called click-wrap terms and conditions, where the user checks a box to affirm consent to the terms and conditions. To be sure there may be additional costs associated with this model but additional benefits too: the subscription model offers opportunities for greater interaction between the website and the user.
While an ethic of transparency should act as a driver for clarification regarding the contractual status of museum website terms and conditions, other drivers may affect this agenda. The European Commission recently published a draft Directive on contracts for the supply of digital content. The purpose of the proposal is to secure harmonization of consumers’ rights in relation to contracts for the supply of digital content. Significantly these rights will apply in relation to contracts for the supply of digital content paid for or not provided that the consumer actively provides some counter-performance, including by means of the supply of data. The effect of such a proposal would be to ensure that where digital content is supplied under contract, and in exchange for data supplied by the consumer (many websites collect personal data under the privacy provisions of their terms and conditions), the website will have obligations as well as rights under the contract. If the Directive is enacted in its current form, European museums may wish to re-evaluate the risks and rewards associated with terms and conditions that might be construed as having contractual effect.
 Generally, under rules of private international law, Courts will apply the law of the territory in which protection is sought in order to determine whether copyright has been infringed.
 The phrase ‘terms and conditions’ is used here as an umbrella term to refer to any form of statement or notice appearing on any of the websites featured in the exhibition, that regulates use of website content.
 This is so provided that in the law of the country in question, non-contractual terms and conditions are not relevant to civil or criminal claims under computer misuse or analogous provisions. While on one view, in the US, contractual terms and conditions may found a claim for computer misuse, it is not clear that such claims may be grounded in non-contractual terms and conditions.
 Note however that in some cases the user may require to take into account the restrictions imposed by the European sui generis database right.
 In some circumstances it may be possible for the user to challenge particular restrictions as to use by arguing that those restrictions should be denied contractual effect even where the terms and conditions are otherwise valid and enforceable. For example Ireland, Portugal and the UK have introduced legislative provisions to the effect that the exercise of some or all of their national copyright exceptions may not be excluded by contract. This is not the norm.
 The implications of territoriality are that both the scope of the protection afforded by copyright and the nature of exceptions or limitations to copyright protection vary from country to country. In situations involving cross-border access to and use of copyright works recourse must be had to the rules of private international law to determine which country’s copyright infringement rules may apply.
 For example, the terms and conditions of the Belvedere (Vienna), the British Library, the Kunst Historisches Museum (Vienna) and the National Galleries Scotland prohibit all copying of their website content without permission, making no allowance for copyright exceptions or limitations. The Acropolis prohibits reproduction and distribution of the contents of its website for all purposes other than research and education, though the Greek copyright exceptions extend to use for other purposes. Kelvingrove prohibits all copying other than for personal or not for profit use. The Kunsthaus Zurich and the Musée D’Orsay prohibit all use of the website content other than for individual and private consultation. Writing about restrictions in terms and conditions applied to digitized versions of public domain books made available online Clark and Chawner note, ‘Usage restrictions imposed by repositories included: no hosting, no republication, no alterations, scholarly use only, personal use only, non–commercial use only, attribution required, or permission required for all uses.’ (Clark and Chawner 2014)
 Paul Torremans considers that ‘[t]he way forward is to give priority to contract’ (2010, 63).
 The offer and acceptance analysis tends to be jettisoned only where the nature of the dealings between the parties does not lend itself to that analysis. In the case of website terms and conditions the analysis is apt.
 The Courts may treat a person as having constructive (or imputed) notice of an offer where he is ‘put in a position that under normal circumstances he can be expected to take notice of it’ (Schlesinger and Bonassies 1968, 104). The doctrine of constructive notice has particular significance in the context of website terms and conditions since generally the terms and conditions are not directly communicated to the user but only indirectly communicated by means of a hyperlink. As a result questions very often arise as to whether the manner of the display of the terms and conditions is sufficient for the user to be considered to have constructive notice of those terms.
 Hines v Overstock.com Inc 668 F Supp 2d 362 (EDNY 2009); aff’d 380 Fed Appx 22 (2nd Cir, Jun 2010).
 The ‘fold’ of a webpage is ‘the division between the part of the first page which appears on screen immediately and the part which requires the user to scroll down.’ Interflora Inc & Anor v Marks and Spencer Plc & Anor  EWHC 1291 (Ch) .
 The Court suggested that the requirement for notice of an offer might be fulfilled where the hyperlink to the terms and conditions is accompanied by text to the effect that ‘Entering this Site will constitute your acceptance of these Terms and Conditions’.
 Cvent, Inc v Eventbrite, Inc, 739 F Supp 2d 927, 936-37 (ED Va 26 2010); Koch Indus Inc v Does No. 2:10CV1275DAK, 21 2011 WL 1775765, (D Utah 2011); Van Tassel v United Marketing Group LLC 795 F Supp 2d (ND Ill 2011); In re Zappos.com, Inc, Customer Data Sec Breach Lit, 893 F Supp 2d 1058, 1064 (D Nev 2012); Nguyen v Barnes & Noble, 763 F 3d 1171 (9th Cir 2014); Sgouros v TransUnion 14 C 1850 (ND Ill 2015). The commentary supplied by Guibault suggests that the Dutch Court took a similar in Vermande v Bojkovski, District Court of The Hague, (March 20, 1998) (Guibault 2006, 96).
 Users may however search the website of the Rijksmuseum without locating the terms and conditions. The terms and conditions are automatically downloaded to the user’s ‘downloads’ folder (without notification) when the user downloads images from these websites.
 This may be so either by virtue of rules concerning the incorporation of terms into a contract, a separate contract formation requirement for a showing of intention to be legally bound, or on account of a construction of mutual consent that presupposes intention to be legally bound.
 Some museum websites (for example, the National Gallery, London and the Tate) adopt a ‘layered’ approach to regulation of use of website content, employing separate terms and conditions governing on the one hand, use of the website and its contents, and, on the other, relating specifically to use of digital images in the museum’s online collection.
 In other words, these are ‘browse wrap’ terms and conditions.
 Nevertheless according to Loos, et al., Italy, Poland, Spain and France do not regard browse-wrap licences as binding (2011, 4.3.3.).
 Most supermarket transactions, purchases of tickets for travel or car parking are contracts where acceptance is implied from conduct.
 In such cases, ‘The question is, what was the contract between the parties?’ McCutcheon v David MacBrayne Ltd 1964 SC (HL) 28. No real issue arises as to whether there was a contract at all.
 Considering browse-wrap terms and conditions relating to use of websites, Macdonald asks: ‘why make a contract to do something you can do without making a contract?’ (Macdonald 2011, 303). Macdonald recognises the significance of the ‘prior rights’ held by the parties but a detailed examination of those prior rights is outside the scope and purpose of Macdonald’s article. The author offers an examination of the respective rights and privileges of website and user under English law in Pauline McBride, ‘Beyond Copyright: The Annexation of Looking by Contract’ (DPhil, University of Glasgow 2016). This essay incorporates some of the views expressed in the thesis.
 The authors imply that this rule extends to other common law jurisdictions.
 The Aramis  1 Lloyd’s Rep 213.
 FW Farnsworth Limited v Paul Lacy  EWHC 2830 (Ch).
 Note that here the requirement for an exchange element is tethered to the need for a basis for the inference of consent. It does not flow from the doctrine of consideration.
 Some commentators suggest that permission for access to the website supplies the basis for consent (Lipinski 2013, 290-92). If, under the applicable law, the user requires permission to access the website, then the argument is well-founded. The ingredient of exchange is supplied by a permission the user does not already possess. It is far from clear that such permission is necessary under English law.
 The astute user might try to find answers as to whether and when acceptance of website terms and conditions may be triggered by use of website content by referring to decisions of the Courts. However, in some jurisdictions, the Courts have not addressed the question at all (England, Australia, New Zealand). In others, the Courts have touched on the question without resolving the issue (Ireland, Spain). While the judgment in Register.com v Verio F 3d 393 (2d Circuit 2004) has gone a long way to ensuring that, in the US, any use of the content of a website will be treated as triggering an inference of consent to the website’s terms and conditions, the mode of the access to and use of the content by the defendant in that case is distinguishable from other modes of use of website content.
 Since the scope of the user’s rights and privileges is relevant to contract formation, in cases where litigation relating to the contract would likely take place before a Court in any of the Member States of the EU to which the Rome I Regulation applies, the user may be able to rely on Article 10 of the Regulation to invoke the law of the country of his habitual residence to determine whether his conduct has binding effect (Ferrari 2015, 366-67).
 The cross-border dimension of website use, where the website operator has its habitual residence in one territorial jurisdiction and the user another, adds a further layer of complexity to the question of the contractual status of online terms governing use of the website content. While choice of law clauses may offer some certainty as to the law applicable to the contract, a choice of law clause may be displaced by private international law rules.
 For example the Europeana Public Domain Usage Guidelines state ‘This usage guide is based on goodwill. It is not a legal contract.’ Europeana Foundation, ‘Public Domain Usage Guidelines’, available at: http://www.europeana.eu/portal/rights/public-domain.html (accessed: 5 April 2016).
 Such an approach would be in line with the Court’s suggestion in Hines v Overstock (n 18).
 Museums already collaborate to develop and publish best practice guidelines geared towards reducing the risks faced by museums in licensing content (see for example Young 2015).
 However, from a contract formation perspective, the Rijksmuseum’s implementation of the model is imperfect since the user has no opportunity to view the terms and conditions before subscription is complete.
 Commission, ‘Proposal for a Directive Of The European Parliament And Of The Council on certain aspects concerning contracts for the supply of digital content’ COM (2015) 634 final.
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