Fine-Print Online: Some Problems with Online Consumer Contracts and Possible Solutions

Abstract

Internet commerce, and in particular online contracting, challenges many of the assumptions of traditional contract law theory and of New Zealand’s legislative consumer protection regime. This essay explores these challenges, examining whether browse-wrap and click-wrap agreements should and would be upheld as binding contracts by New Zealand courts. It examines the international element of these agreements. Many online contracts are concluded with parties outside New Zealand, and are not governed by New Zealand law. This means that, often, New Zealand consumers transacting over the internet will not enjoy the protection of New Zealand’s consumer protection regime. This essay examines the policy ramifications for consumers and businesses of imposing New Zealand law on these contracts. It concludes that, in order to encourage internet commerce in New Zealand, the courts and the Government must reform consumer protection law to take into account the growing world of internet commerce. In doing so, it is crucial to balance the interests of businesses and the interests of consumers. This essay outlines some possibilities for law reform to achieve this goal.