Clickwrap Agreement
Also known as: Click-to-Accept, Click-Through Agreement.
What is Clickwrap Agreement?
A clickwrap agreement is an online contract formed when a user actively assents to terms by clicking an "I agree" button or equivalent before proceeding. Under the Electronic Communications and Transactions Act 25 of 2002 and the Consumer Protection Act, a properly implemented clickwrap is enforceable in South African law.
Drafted and reviewed by
Attorney & Founder, My-Contracts.co.za · Legal Practice Council of South Africa (LPC F17333)
Definition and context
A "clickwrap" (or "click-to-accept") agreement is a contract concluded online where the user is presented with the full terms, required to scroll or acknowledge them, and to take an affirmative act of assent such as ticking an unchecked box and clicking "I agree" before proceeding with registration, purchase or use of the service. It is distinguished from a "browsewrap" (mere notice, no affirmative click) and a "sign-in wrap" (implied agreement by account creation). South African law, through the Electronic Communications and Transactions Act 25 of 2002 (ECTA), expressly validates electronic contracts: section 11 confirms that information is not without legal effect merely because it is in the form of a data message; section 22 recognises agreements concluded by electronic means; and section 24 permits expression of intent by data message.
For enforceability against a consumer, the clickwrap must also comply with the Consumer Protection Act 68 of 2008 (CPA). Section 22 requires terms in plain and understandable language; section 49 requires any term that limits liability, imposes an indemnity or constitutes an acknowledgement of fact to be drawn to the consumer\'s attention in a conspicuous and plain manner before assent. A hyperlinked "terms and conditions" presented but unread does not of itself fail this test, provided the structure requires an affirmative click and unusual or onerous terms are highlighted (see Roazar CC v Falls Supermarket CC 2018 (3) SA 76 (SCA) on incorporation by reference). Courts have enforced clickwrap terms in Just Marketing Concepts v Roberts 2015 JDR 1402 (GJ) and in numerous arbitrations.
Best-practice clickwrap design for South African audiences includes (i) a scroll-through requirement showing the full terms or a link expanded by default, (ii) an unticked checkbox for mandatory assent, (iii) separate tick boxes for POPIA consent and direct-marketing opt-in (in Form 4), (iv) a clickstream log recording IP, timestamp, version of terms and assent event, retained for at least the contractual limitation period, and (v) version control of terms with a change-notification mechanism for continuing services. Failure on any dimension exposes enforceability to challenge under ECTA, the CPA or POPIA.
Where this term lives in law
Electronic Communications and Transactions Act 25 of 2002
Sections: 11, 22, 24
Governs electronic transactions, digital signatures, and e-commerce in South Africa.
Consumer Protection Act 68 of 2008
Sections: 22, 49
Protects consumer rights in transactions for goods and services within South Africa.
Protection of Personal Information Act 4 of 2013
Sections: 11, 69
Regulates the processing of personal information by public and private bodies in South Africa.
Frequently asked questions
Is a clickwrap agreement enforceable in South Africa?
Yes, under ECTA sections 11 and 22. Enforceability requires genuine assent — a clear presentation of terms, a scroll or acknowledgement requirement, and an affirmative click. Browsewrap or buried-hyperlink terms are vulnerable to challenge.
Can I enforce a clickwrap against a consumer?
Only if it complies with CPA sections 22 (plain language) and 49 (conspicuous disclosure of limitations, indemnities and unusual terms). An onerous indemnity hidden in fine print is liable to be struck down even if assent was given.
Does a clickwrap require a wet signature?
No for ordinary contracts. Yes for the limited categories in ECTA section 4(4) read with Schedule 2 — agreements for the alienation of immovable property, long leases, wills, and bills of exchange — which require an advanced electronic signature or wet signature.
Must I keep records of clickwrap acceptance?
Yes. Prudent practice is to log IP, timestamp, user agent, version of terms, and the assent event. Section 14 of ECTA and section 23 of the Tax Administration Act impose retention obligations.
Can I update clickwrap terms unilaterally?
Only if the original terms permitted reasonable unilateral amendment on notice, and only subject to CPA section 48 (unfair terms) and the common-law duty of good faith. Material changes to continuing services typically require fresh assent.
Contract templates using this term
5 templates reference Clickwrap Agreement.