In the recent case of Century 21 Canada Limited Partnership v. Rogers Communications Inc. dba Zoocasa Inc., 2011 BCSC 1196, the Supreme Court of British Columbia held that a browse wrap agreement was enforceable. Though previous decisions have held that shrink wrap and click wrap agreements can be enforceable, this is the first Canadian decision to deal directly with the enforceability of browse wrap agreements.
While numerous issues were analyzed at trial (a review of which is beyond the scope of this article), the primary issues of interest were whether Zoocasa:
(a) entered into; and
an enforceable contract
by accessing the Century 21 site and posting property listings from that site on its own site.
Mr. Justice Punnett of the British Columbia Supreme Court answered both questions in the affirmative. In a thorough judgment, the Court canvassed various 18th Century English “ticket” cases, which first established the principle that enforceable contracts can be entered into by parties through their actions, without signatures or a handshake. In those early cases, passengers on public transport were deemed to be bound by the terms printed on the back of tickets, where those terms had been brought to their attention prior to embarking on their journey. The Court also reviewed the recent history of electronic contracting, from shrink wrap to click wrap agreements and more recently, various U.S. decisions on the enforceability of browse wrap agreements.
The Court was not persuaded by Zoocasa’s public policy argument, that enforcing a browse wrap agreement such as this would have a “chilling effect” on the open nature of the development of the Internet. The Court held instead, that if businesses are denied control of the information they post on their websites, they may be less inclined to use the Internet.
So what lessons are provided by the Century 21 case?