Electronic Waivers
April 09, 2011
John Wolohan
Department of Sport Management & Media
Ithaca College
As already detailed in this Newsletter, it is well established that in most states a well-written waiver, signed by an adult, can be an effective tool in protecting sport and recreation providers from negligence liability. What is not so clearly established, however, is the legal impact of online or electronic waivers. For example, if a sport and recreation program requires its participants to go online and sign a waiver before being allowed to participate in the event, will it carry the same legal weight as off-line or traditional paper waivers?
The purpose of this article is to take some of the guess work out of online or electronic waivers and to provide sport and recreation administrators with a checklist for writing and using online or electronic waivers. Before considering online or electronic waivers, however, it is important for the reader to understand how the courts have traditionally viewed waivers in the off-line world. Basically, a waiver is a contract in which the sport and recreation participant agrees to relinquish his or her right to sue the service provider in any event the participant is injured due to the provider’s negligence.
When reviewing the legality of waivers, therefore, the courts will apply fundamental contract principals. With the development of the Internet and electronic contracts, the courts are using the same basic contract theories they developed for other forms of communication such as telegrams, mail and telephones. In addition to the basic elements of contract law, the enforceability of electronic waivers and other electronic contracts are also governed by two additional laws: the Electronic Signatures in Global and National Commerce Act (E-SIGN), at the national level, and the Uniform Electronic Transactions Act (UETA) at the state level .
E-SIGN, which was signed into law by President Clinton in 2000, is designed to give legal protection to online or electronic contracts and give them the same weight as paper transactions. In particular, the law sates that a “signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation” 15 U.S.C. § 7001 (a) (1) & (2).
In addition to clarifying the legality of online or electronic contracts, E-SIGN also clarifies what constitutes an electronic signature. Under E-SIGN, the term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record” 15 U.S.C. § 7006 (5).
Therefore, when sport and recreation providers ask participants to click on or check a box to accept the terms of the waiver, once the participant clicks on the box he or she has accepted the contract or waiver terms and has entered into a legally binding agreement. The benefit of using such “Click-wrap Agreements” is that they often remove many factual questions concerning whether the user had adequate notice of the terms of the waiver and whether he or she agreed to them.
As a final word of caution, it is important that when using online or electronic waivers, sport and recreation administrators always include a statement concerning which jurisdiction or state laws will apply in the case of a lawsuit. The reason this is so important with online or electronic waivers is because you do not want to be defending a lawsuit in an out-of-state court. This is a real possibility in today’s electronic age, since most state courts are willing to exercise jurisdiction over out-of-state and international businesses if it believes that the business, by operating a website that purposely solicits commercial activity from out-of-state participants over the internet, has sufficient commercial activity within the state to make jurisdiction reasonable.
ONLINE WAIVER CHECKLIST
While most of the guidelines listed below should also be followed when writing any type of waiver, the following checklist is designed specifically to help sport and recreation administrators write online or electronic waivers.
– The waiver should be clearly titled and descriptive (e.g., Waiver & Release of Liability);
– The waiver should use clear and easy to understand language;
– The waiver print size should be at least 10 point;
– The waiver should not contain any fraudulent statements;
– The waiver should clearly and unambiguously state that the signer is releasing the service provider from liability for injuries resulting from the ordinary negligence of the provider;
– The waiver should contain some statement denoting consideration (e.g., “In consideration for being allowed to participate in . . ., the signer agrees to . . . .);”
– The waiver should specifically identify the parties who are relinquishing their rights and the parties who are protected by the waiver;
– The waiver should be no longer than one page and all substantive terms should be visible and complete without hyperlinks to additional terms;
– The user should not be allowed to click on the accept button without being allowed the opportunity to review the entire agreement;
– The reader should have the opportunity to read the document at their own pace and should have the ability to browse through and to view all the terms of the agreement;
– The waiver should have a statement indicating that the signer read the entire statement
– Accept/Decline buttons must be at the end of the agreement;
– The buttons should clearly state Accept/Decline.
Attorney John T. Wolohan (jwolohan@ithaca.edu) is a professor of sports law and chair of the Department of Sport Management & Media at Ithaca College.
Editor’s note: Each Canadian province has an ‘Electronic Signatures Act’