It’s fairly common for Internet marketers to offer customers a continuity program after they agree to some kind of trial offer or purchase a product. But, depending on how the offer is presented, it’s questionable as to whether it’s legal.

I’m NOT talking about hidden continuity here. There’s little question that making someone pay for something they didn’t agree to buy is unlawful. But I’m not talking about that. I’m talking about a continuity program that IS obvious, but is offered to customers as a PRE-CHECKED option i.e. on the basis that the customer would need to un-check a pre-checked checkbox i.e. opt-out in order to get out of the continuity program.

It’s generally accepted that when you require someone to agree to terms and conditions on a website, e.g. when they sign up to an affiliate program, they need to check a box to indicate their agreement to those terms. As such, the checkbox should be unchecked by default.

This isn’t legal advice, of course, but I would suggest that unless you give obvious, clear instructions along the lines of ‘YOU MUST UNCHECK THE BOX OR YOU ARE TAKEN TO HAVE AGREED TO THESE TERMS AND CONDITIONS’ then a pre-checked box would NOT, of itself, constitute agreement to those terms. (It’s doubtful even with the instructions.)

It’s a bit like someone else signing a contract for you and then telling you that unless you cross out their signature, you’re taken to have agreed to the contract!

That’s ridiculous, right? But it’s really not that different to pre-checking a box that’s supposed to denote agreement to terms and conditions on a website… Or pre-checking a box denoting agreement to a continuity program…

It’s a different story if you build the continuity program into the offer i.e. you make it clear that when someone buys your product they also get added to the continuity program and will be billed on a regular basis unless they cancel.

It MAY also be a different story if you make it VERY clear that the continuity program applies unless the customer unchecks a pre-checked box.

In these two scenarios it’s arguable that you have clearly communicated the offer to the customer which they, in turn, have agreed to.

But let’s be honest here. By displaying a pre-checked box for your continuity offer… aren’t you specifically doing so in order to NOT draw attention to the continuity program? And that’s really the issue here. Unless someone is AWARE of and UNDERSTANDS what they have agreed to – whether they are buying something or agreeing to any other kind of contractual terms – then there is NO agreement.

This means that if they come back to you complaining they didn’t see the pre-checked box for your continuity program… you probably don’t have a leg to stand on.

My suggestion? Either build the continuity offer into the offer as a whole – and make it OBVIOUS – or display the continuity offer with a checkbox that is NOT pre-checked by default.

This entry was posted on Friday, December 12th, 2008 at 3:38 am and is filed under Feature, Internet Marketing Niche, Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.