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Is it acceptable (or even legal) to have "I agree to the terms and service" checkbox automatically checked when a new user signs up with our website? I'm trying to convince the person in charge to not have the developers implement that feature. What are the best arguments for leaving the checkbox unchecked on page load?

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It sounds to me that the answer to this question will be highly depending on the jurisdiction you're talking about, but you are not mentioning it. That, in turn, makes me assume you're in the USA, but that is just my prejudice talking... Having said that, this is not a UX issue, but a legal issue. Perhaps you should consult a lawyer rather than a UX forum. –  André Jan 28 '13 at 12:50
    
While you are correct that I'm in the USA, this was initially a UX question as we needed to convince certain individuals that this is a bad idea from a UX perspective, the legal addition is just a reinforcement of our argument. If there was any further dispute we would have consulted the proper legal counsel. –  Chris Jan 28 '13 at 16:45
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up vote 8 down vote accepted

It is legal to do that, but you will gain no legal protection if the default state is to agree.

Unless a user explicitly agrees (which means actively doing something rather than not doing something), any legal agreement that you have will be unenforceable in court. This has been tried and tested legally, so it is one of the few areas that are crystal clear.

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So what you're saying is that if a user creates an account with the box automatically checked and then knowingly violates our terms of service (to some point where we wish to take legal action), we wouldn't have a case (assuming the user didn't do anything explicitly illegal)? –  Chris Jan 17 '13 at 18:28
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@Chris, that is exactly what I am saying. Some really big companies with large legal teams have found this out the hard way. –  JohnGB Jan 17 '13 at 18:30
    
Awesome, thanks so much! –  Chris Jan 17 '13 at 18:30
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More importantly as a user accessing the site I feel insulted that the company has the gall to pre-check that option for me without my express consent... and if I was the kind of person that was looking for trouble the action of having to accept the terms might provide a not-so-subtle reminder that I'm about to cross the line and my excuse of being naive to the terms is about to vanish. (while on a rant... ditto goes for companies that pre-check installed tag-along software... I downloaded SomeUtil I didn't want the Bonzi Buddy Toolbar thank you very much!) –  scunliffe Jan 18 '13 at 4:16
    
Not doubting your word - do you happen to have a reference to the court case that made this decision ("tried and tested legally")? –  Bob Dec 24 '13 at 22:41
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