Game Design Considerations to Reduce Litigation Risk

Most mobile games, just like most websites, incorporate terms of use (or terms of service or an end user license agreement) into the application somewhere. This document, at best, is intended to form a contract with your player. Terms of use can help you avoid distracting, time-consuming, and expensive litigation, as they often include class action waivers, mandatory arbitration provisions, jury waiver, choice of venue provisions, and/or choice of law provisions.

Whether your document is likely to be enforced as a contract by a court depends on whether you can prove that the user consented to the documents (e.g., whether a contract was entered into). Whether you can demonstrate that a contract has been entered into turns primarily on the design of the mobile game.

Definitions: Browsewrap and Clickwrap

The key design choice is between a “clickwrap” and a “browsewrap."  Clickwrap agreements are generally defined by the requirement that users ‘click’ some form of ‘I agree’ after being presented with a list of terms and conditions. A browsewrap is an agreement whereby a customer assents to the contract merely by playing the game.  There is no affirmative action required for a browsewrap.  Browsewraps are a common feature in mobile applications because consumers often want to access the application as soon as it downloads.

Although browsewraps are not presumptively unenforceable, they are noticeably more difficult to enforce and, for at least that reason, are disfavored from a risk mitigation perspective.

Design: What Will Courts Enforce?

The validity of a browsewrap agreement often turns on whether the application put a reasonably prudent person on inquiry notice of the terms of the contract.  Even close proximity of a hyperlink to account creation actions that a user needs to take is often not enough to meet this standard. To establish the enforceability of a browsewrap agreement, a textual notice should be required to advise consumers that continued use of a game will constitute the consumer’s agreement to be bound by the terms of use. A conspicuous ‘terms of use’ hyperlink may not be enough to alert a reasonably prudent Internet consumer to click the hyperlink.  However, whether a particular game put a player on a reasonable notice will often depend on the game design (such as font size and color, background shading, other text and images, etc.).

A better practice is to use a clickwrap and design the presentation of the clickwarp in a way that makes it indisputable that the player saw the link to the terms of use (if not was actually presented with the document) and affirmatively consented to the document.  Evidence that has directly established that users had to click on two buttons manifesting assent: a check box with the text ‘I agree to the terms and conditions of the updated Terms of Service and other terms,’ and a red button right below it, with white text, reading ‘I Agree’ or ‘Agree’ has been enforced.  

Similarly, in another instance a court enforced the terms of service where the mobile application user created an account that included a notice that by creating the account they agreed to the terms of service.  The court pointed to the affirmative actions that the user had to take to create the account and that during the process was presented with the terms of service and an opportunity to view the terms.  The court there, too, focused on the size of the font, the colors in relation to one another (i.e., whether anything was obscured or hard to view). The court in that case concluded that “the design of the screen and language used render the notice provided reasonable as a matter of California law.” The user’s assent—registering for the service—was unambiguous in light of the design. Of note for other mobile applications, the court wrote that “when considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone.” 

Finally, it is prudent to obtain consent to updates to your terms of service and not merely rely on language in your terms that a user consents to future updates.

Best Practices

Depending upon the specific application and context, companies should consider the following procedural changes:

 • 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,” before 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 phone as to be illegible).

 • Require the click before the user can use the application.

 • Provide a hyperlink, accessible through the relevant mobile 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 the application to minimize risk and maximize consumer satisfaction.