[Opinion] Re-visiting Consent | The Evolution of ‘I Accept’ and ‘I Agree’ in Light of the DPDP Act, 2023

CS Pradnesh Kamat & Veerti Shah – [2023] 156 taxmann.com 710 (Article)

In our everyday digital lives, we often encounter electronic contracts without even realizing it. These contracts quietly play a role in shaping our online experiences, acting as the architects of our virtual engagements. When we click through applications, software, or websites, we are not just scrolling and clicking; we are entering into legitimate, binding and enforceable agreements, although in a digital form. These agreements, made in pixels rather than with a pen, silently influence the way our online transactions unfold.
Given our tendency to skim through the fine print of those cookie agreements, our consent often unfolds unwittingly. Yet, behind the scenes, cookies wield the power to delve into your online pursuits, acquiring sensitive data that may find its way into the hands of advertisers and third parties. While this practice is the origin of the realm of targeted advertising, it simultaneously unfurls the daunting threat of sensitive information slipping into disreputable hands. Beyond mere data collection, cookies harbor the capability to shadow your virtual movements, meticulously crafting a mosaic of your interests and, in some instances, deducing your whereabouts. This intricate design of digital surveillance, weaves a narrative of privacy concerns and the potential pitfalls of our somewhat unconscious online agreements.

End User License Agreements

Like any online agreements, End User License Agreements, commonly found in nearly every one-sided e-contract, fall under the expansive category known as “Click Wrap Agreements.” Functioning through user-friendly clicks, these agreements offer options like “I accept,””I agree,””Ok,” or “I consent.” In this digital ballet of interactions, users engage with these prompts, often unaware that they are actively shaping legal agreements with a simple click. The seemingly straightforward nature of these options masks the legal weight they carry, illustrating the subtle power dynamics embedded within the user’s virtual journey. However, we must determine the implications of such contracts.

In Rudder v. Microsoft Corporation [1992], 2 CRR (4th) 474, the plaintiffs contended that they should not be beholden to specific terms outlined in Microsoft’s “Member Agreement” due to their failure to peruse the entire agreement before electronically endorsing it. However, the Ontario Superior Court of Justice, led by Justice Winkler, rendered a different verdict. Justice Winkler asserted that the obligation to scroll through the “Member Agreement” was essentially tantamount to the traditional act of flipping through pages in a multi-page document. Consequently, as a general principle, the court affirmed that when we click to agree, we are, in fact, legally bound by the online terms and conditions, irrespective of whether we meticulously read through them or not.

Furthermore, the legal precedent set forth by the Supreme Court in the case of Trimex International FZE v. Vedanta Aluminum Limited, 2010 (1) SCALE 574, unequivocally affirms that digital forms of approval carry equal weight and validity as their traditional written counterparts. The Court’s ruling extends this recognition to encompass even the realm of email correspondence, solidifying the standing of electronic approvals within the legal framework. This landmark decision serves as a cornerstone, establishing that the mode of approval, whether digital or written, does not undermine the legitimacy of the consent provided.

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