A Detailed Examination of Consumer Protection, Enforceability, and Unilateral Modification in Digital Contracts

1. Introduction: The Ritual of the Unread Agreement

In the digital age, the ubiquitous “I Agree” button has become a near-meaningless ritual. Millions of users daily click through Terms of Service, Terms of Use, or Terms and Conditions without reading a single word. These agreements, however, fundamentally shape their legal rights, determining everything from dispute resolution mechanisms to data privacy protections.

This phenomenon raises critical questions: Are such “agreements” legally binding when consent is given without actual knowledge? Can a user be held to terms they never read? What happens when companies unilaterally update these terms in ways users find unacceptable? And crucially, can Nigerian consumers rely on their domestic legal framework for protection?

This article examines the legal frameworks governing online standard-form contracts in Nigeria and under international law, analyzing key cases, statutory requirements, and the practical implications for businesses and consumers. It argues that while courts increasingly enforce these agreements based on constructive notice rather than actual reading, the pendulum is shifting toward more rigorous scrutiny of whether genuine assent has been manifested.

2. The Nature and Importance of Online Terms

Terms and Conditions serve as the foundational legal document governing the relationship between a service provider and its users. They define rights, responsibilities, liabilities, and the scope of permissible use. A well-drafted Terms document serves several critical functions: managing user expectations, minimizing legal exposure, outlining acceptable use, and promoting transparency and trust.

For Nigerian businesses, these documents have acquired heightened importance with the passage of the Federal Competition and Consumer Protection Act 2018 (FCCPA), the Nigeria Data Protection Act 2023 (NDPA), and the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (as amended 2024). These legislative frameworks impose specific obligations that must be reflected in online agreements.

3. The Problem: The “Unread Contract” Phenomenon

The central paradox of online contracting is that these agreements are seldom read. Yet, as courts across jurisdictions have consistently held, the failure to read terms does not automatically absolve a user from being bound by them. Traditional contract law principles of constructive notice apply: a party who signs or clicks to accept a contract is generally charged with knowledge of its contents, even if they did not read them.

The Nigerian legal position on this issue remains nascent, with no reported Nigerian case directly addressing the enforceability of clickwrap or browsewrap agreements as of the time of this writing. However, Nigerian courts are likely to apply established English common law principles of contract formation, as received into Nigerian law, requiring offer, acceptance, consideration, and an intention to create legal relations. This reliance on traditional principles-sometimes described as a “technology-neutral” approach-has been criticized for failing to account for the peculiarities of digital transactions, particularly the absence of physical examination of goods before purchase and the diminished opportunity for pre-contractual communication.

4. The Clickwrap-Browsewrap Distinction and Consumer Protection

4.1 Clickwrap Agreements

A clickwrap agreement requires a user to take an affirmative action-checking a box or clicking an “I Agree” button-to signify assent. Under well-settled precedent, clickwrap agreements are generally enforceable under traditional contract principles because the user must take an active step to accept the terms before proceeding.

The U.S. District Court for the Eastern District of Virginia confirmed this approach in Lovinfosse v. Lowe’s Home Centers, LLC (2024), holding that a consumer had constructive notice of Terms and Conditions when a hyperlink to them appeared directly below the “Place Order” button, and that clicking the button constituted mutual assent to be bound. The court noted: “That Plaintiff did ‘not bother reading [the] terms . . . is the choice . . . [she] ma[d]e[]’ and is of no consequence”.

4.2 Browsewrap Agreements

A browsewrap agreement merely discloses terms through a hyperlink, and the user supposedly manifests assent simply by continuing to use the website. Courts are far more hesitant to enforce browsewrap agreements because customers are often unaware of their existence or that continued use will be deemed acceptance.

The Ninth Circuit’s decision in Berman v. Freedom Financial Network established a two-part test for enforceability: “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms”.

4.3 Sign-in Wrap Agreements

Recent cases have also addressed “sign-in wrap” agreements, where users are presented with terms during sign-up but may not be required to click a separate “I Agree” button. Courts have found such agreements may fail where notice text is too small, in a hard-to-read color, too far from the action button, or where the action button text does not match the assent language.

5. Unilateral Modification: The Core Controversy

Perhaps the most significant area of legal evolution concerns a company’s ability to unilaterally change terms after a consumer has already agreed to them. This practice, embedded in most online Terms of Service, presents a fundamental challenge to the concept of mutual assent.

5.1 The Traditional Position

Many websites and Internet-based services rely on standard click-through terms that provide that the service provider may amend the agreement at any time, and a user’s continued use of the website or service is considered consent to the amendment. The general industry practice has been to provide notice to users of an amendment via email without requiring affirmative acknowledgement or consent to the amendment.

5.2 The Shift: Sifuentes v. Dropbox (2022)

In Sifuentes v. Dropbox, Inc., the Northern District of California found this standard practice to be insufficient to bind a user to an amendment. The court ruled that Dropbox’s method of mass-emailing users to provide notice of amendments without requiring some other “action, such as clicking a button or checking a box” is insufficient to find that the user agreed to the amendment.

David Angel Sifuentes signed up with Dropbox in 2011 and affirmatively agreed to Dropbox’s terms of service, which at the time did not include an arbitration provision. In 2014, Dropbox modified its terms to add an arbitration provision and provided users with an option to opt-out. Dropbox provided notice to Sifuentes of this change via email but did not require any further actions from him. When Sifuentes sued Dropbox in 2020 for various claims arising out of a data breach, Dropbox moved to compel arbitration pursuant to its modified terms. The court, citing Ninth Circuit precedent in Berman, ruled that Dropbox could not enforce amendments that Sifuentes did not affirmatively agree to.

5.3 The Lovinfosse Doctrine: When Unilateral Modification Renders Contracts Illusory

The most significant recent development is the Lovinfosse v. Lowe’s Home Centers, LLC (2024) decision in the Eastern District of Virginia, which held that a unilateral modification clause can render an arbitration agreement illusory and unenforceable.

Lowe’s Terms and Conditions contained the following clause:

“You agree that [Defendant] may change, terminate, modify, add, end or delete any of these terms and conditions (including, without limitation, the Terms) under which the Site is offered at any time and without notice to you” (emphasis added).

Although the consumer had constructive notice of the Terms and Conditions, the court concluded that the “unrestricted ability to modify the terms without notice made the arbitration clause illusory and unenforceable”. The court reasoned that a customer who makes a single transaction would have no way of knowing if the terms had changed unless they constantly checked the website. The court emphasized that the lack of required notice distinguished this case from others where unilateral modification clauses were upheld.

This reasoning echoes the earlier Harris v. Blockbuster Inc. (2009) decision, where the Northern District of Texas similarly held that a unilateral modification clause in Blockbuster’s online terms of use rendered the arbitration clause illusory and unenforceable.

5.4 The Contrasting Approach: Rodriguez v. Instagram (2014)

The case law regarding unilateral modification has not been uniform. In Rodriguez v. Instagram (2014), Instagram’s terms stated that users would be notified of material changes to the terms, and the meaning of “material change” would be determined at Instagram’s sole discretion. Though Instagram had sole discretion to determine when to give notice, the court upheld the unilateral modification-noting that Instagram had in fact provided reasonable advance notice via email and that continued use of the service constituted acceptance of the new terms.

5.5 The Maryland Position: Fourth Circuit’s 2025 Decision

In a significant 2025 decision, the U.S. Court of Appeals for the Fourth Circuit affirmed that a change-in-terms clause allowing companies to “change any term of [the credit card] Agreement’ at its ‘sole discretion, upon such notice . . . required by law'” rendered the arbitration agreement illusory under Maryland law. The court found the clause “so one-sided and vague that it deprived the agreement of any meaningful reciprocity”.

However, the court was careful to limit its holding to Maryland law, noting: “Contract formation is a question of state common law. The courts of Maryland have chosen to protect consumers from change-in-terms clauses that allow sophisticated parties to enjoy a built-in escape hatch from their contractual obligations. Other states are entitled to adopt or reject Maryland’s approach”.

5.6 The North Carolina Contrast: Canteen v. Charlotte Metro Credit Union (2024)

The North Carolina Supreme Court reached a different conclusion in Canteen v. Charlotte Metro Credit Union (2024), holding that a unilateral modification clause adding an arbitration clause was enforceable where the original agreement provided for unilateral modifications with notice. The court determined that it is permissible to alter terms if the new terms “relate to subjects discussed and reasonably anticipated in the original agreement”. Two dissenting justices found that the unilateral modification mechanism rendered the agreement illusory.

5.7 Unilateral Modification and Nigerian Law

Under the FCCPA, terms that are “manifestly unfair, unreasonable or unjust” are prohibited. A clause that permits a company to unilaterally modify terms without notice, particularly to impose significant new obligations or waive consumer rights, could be challenged as unfair under Nigerian law. Section 129 of the FCCPA specifically invalidates terms that waive consumer rights or shift liability for gross negligence onto consumers.

6. The Nigerian Legal Framework

6.1 The Federal Competition and Consumer Protection Act 2018 (FCCPA)

The FCCPA is the primary consumer protection legislation in Nigeria and imposes significant requirements on online agreements:

Clear Disclosure: Section 128 requires that users be notified of any terms and conditions governing a product or service. Terms must not deprive consumers of clear, understandable information; accurate pricing and product descriptions; the right to cancel bookings or reservations within a reasonable timeframe; or refunds for unsuitable goods where prior inspection was not possible.

Prohibited Terms: Section 129 invalidates any terms that:

• Mislead or deceive consumers
• Waive consumer rights
• Shift liability for gross negligence onto consumers
• Require consumers to surrender personal items (e.g., ATM cards, IDs, PINs)

Right to Cancellation and Refund: Section 120 provides that consumers have the right to cancel any advance booking, reservation, or order, subject to a reasonable charge for cancellation. Under Section 122, consumers are entitled to return products and obtain a full refund where the product is defective, unsafe, unsuitable after delivery, or where the product does not correspond to the type or quality contemplated in the sales agreement.

The Illegality of “No Refund” Policies: The FCCPA effectively prohibits blanket “no refund” policies. Section 129(1)(B) provides that a service provider shall not make a transaction subject to terms and conditions that purport to waive or deprive a consumer’s right to return defective goods or any right set out in the FCCPA.

6.2 Nigerian Case Law on Consumer Protection

Several Nigerian cases have affirmed consumer rights to refunds and redress, establishing important precedents:

• Patrick Chukwuma v. Peace Mass Transit Ltd. (2021): The Enugu State High Court ruled that “no refund” policies are illegal, particularly when service failures occur. The company was ordered to pay N500,000 in damages.
• Edem Ewa Ekeng & Anor v. Wakanow.com Ltd (2022): The Magistrate Court of Lagos State held that the non-refund policy of Wakanow.com was illegal, null and void, and ordered the company to refund the money paid by the claimants for air tickets.
• Nigerian Bottling Company v. Ngonadi (1985): The court held that manufacturers and sellers owe a duty of care to consumers and can be held liable for defective products.
• Osemeobor v. Niger Biscuits Co. Ltd. (1973): The court affirmed the right of consumers to safety and proper standards.

6.3 The Nigeria Data Protection Act 2023 (NDPA)

The NDPA requires that explicit consent be obtained before processing user data, and imposes obligations regarding data breach reporting and user rights. The enforcement proceedings involving Meta Platforms Inc. before the Nigeria Data Protection Commission (NDPC) represent an important development, with allegations relating to unlawful data processing, consent deficiencies, and non-compliant cross-border data transfers. The matter moved towards settlement in late 2025, with commitments relating to improved transparency, consent frameworks, data governance safeguards, and accountability mechanisms.

6.4 The Technology-Neutral Approach and Its Criticisms

Nigeria has largely adopted a “technology-neutral” approach to regulating the digital market, treating consumer contracts conducted online as simply another consumer contract. Critics argue this approach neglects the digital market’s peculiarities, particularly the distance nature of transactions and the absence of physical examination of goods before purchase. Without specific adjustments, traditional consumer protection mechanisms may become useless for e-consumers.

7. The Exploitation Problem: Dark Patterns, Illusory Consent, and Consumer Harm

7.1 What Are “Dark Patterns”?

“Dark patterns” are manipulative design tactics engineered to steer users toward decisions that benefit the company, often at the expense of user privacy or autonomy. These can include hiding or confusing options, pre-selected boxes, and vague or manipulative language. The Lovinfosse case itself involved allegations of “Online Choice Architecture” (OCA) that led the plaintiff to purchase an unnecessary water hose labeled as “Required for Use”.

7.2 The Consent Illusion

The core issue is that companies can claim a user gave “informed consent” even though the design was intended to prevent a truly free and informed choice. The “I Agree” button has become what one commentator described as a “trap door” that slams shut behind consumers who will only see and understand the terms after they have been bound.

7.3 International Abuses

Recent cases worldwide illustrate the scope of the problem:

• Disney (U.S.): Attempted to enforce an arbitration clause from a streaming service ToS in a wrongful death lawsuit against a restaurant booked on a Disney app.
• Amazon (Australia): Unilaterally introduced ads to Prime Video, charging an extra fee to remove them, without offering subscribers a pro-rata refund.
• Bachcare (New Zealand): Terms that allowed guests to lose up to 100% of their payment on cancellation, while the platform kept its service fee even if the owner cancelled.
• Mable (Australia): Term that automatically deemed a client’s invoice approved unless disputed within 24 hours, and a $5,000 penalty if a support worker left the platform and continued their care arrangement.
• Purple (UK): A Wi-Fi provider buried a clause in its terms requiring users to perform 1,000 hours of community service, including cleaning toilets and “hugging stray cats.” Over 22,000 people agreed, and only one noticed the clause.

7.4 The Nigerian Enforcement Response

The FCCPC has taken significant enforcement action in Nigeria, demonstrating its willingness to challenge exploitative practices. While many of these actions have targeted traditional markets, the regulatory approach signals “zero tolerance for any practice that exploits Nigerian consumers.” Recent enforcement proceedings involving Meta Platforms Inc. before the NDPC reinforce the position that Nigerian regulators increasingly treat data governance as a public interest issue extending beyond purely technical compliance.

8. The Evolving Legal Standard: Towards Affirmative Consent

8.1 The Emerging Standard

The emerging judicial consensus, particularly in influential U.S. federal courts, is that companies cannot rely solely on unilateral change clauses and continued use to bind consumers to new terms. The Sifuentes decision established that email notices are insufficient without some affirmative action manifesting assent.

The Ninth Circuit’s two-part test requires: “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms”.

8.2 Practical Implications for Businesses

Based on the evolving case law, businesses offering online services should:

1. Use Clickwrap, Not Browsewrap: Affirmative consent through an “I Agree” button or unchecked checkbox is far more likely to be enforced.
2. Ensure Conspicuous Notice: Terms must be displayed in a readable font size and contrasting color, placed near the action button.
3. Require Clear Assent for Modifications: Amendments require more than mere email notice; users should be required to click a box or button demonstrating affirmative consent to the amended terms the next time they log in.
4. Prohibit Unrestricted Unilateral Modification Without Notice: Courts are increasingly skeptical of clauses allowing unlimited modification without notice.
5. Comply with Nigerian Law: Ensure compliance with FCCPA requirements, data protection law, and cybercrime reporting obligations.
6. Avoid Unfair Terms: Terms that mislead, deceive, or waive consumer rights are prohibited under the FCCPA.

8.3 Practical Implications for Consumers

Consumers facing modifications they find unacceptable should:

1. Scrutinize the Change: Determine whether the change is minor or significant (e.g., new arbitration clause, fee increase, data-sharing policy).
2. Check for Opt-Out: Look for an “opt-out” or “reject” button. Some companies provide this to avoid legal challenges.
3. Accept Under Protest: If forced to accept, send a formal email stating: “I am accepting these new terms under protest and do not waive my rights under the law, including the FCCPA.”
4. Document Everything: Take screenshots of the pop-up, the date, and the new terms.
5. Report Abuse: File complaints with the FCCPC.

9. Online Dispute Resolution: An Alternative Mechanism

Given that e-commerce disputes often involve parties located far from each other, litigation can be disproportionately expensive for smaller claims. Online Dispute Resolution (ODR)-resolution of disputes electronically through methods including negotiation, mediation, and arbitration-has emerged as a suitable remedy for e-commerce disputes. The American Bar Association Task Force on Electronic Commerce has stated that ODR encompasses many forms of dispute resolution conducted electronically.

10. Conclusion

The “I Agree” button is an illusion of consent-most users agree without reading, yet they are generally bound by what they agree to. However, this is not a failure of the law but a consequence of the standard-form contracting model that underpins the digital economy.

The law is not without limits. Courts require reasonable notice and unambiguous assent. They refuse to enforce inconspicuous terms, oppressive clauses, or agreements that are illusory. The Sifuentes and Lovinfosse decisions represent significant judicial pushback against the most egregious forms of exploitation, requiring affirmative consent for modifications and invalidating unrestricted unilateral modification clauses.

In Nigeria, the FCCPA and NDPA add further layers of consumer protection that online businesses must respect. The Nigerian regulatory environment is increasingly treating consent, transparency, and user choice as matters of public interest, with implications extending beyond technical compliance.

For businesses, the message is clear: invest in well-designed, legally compliant terms of service and implement clear mechanisms for obtaining affirmative consent to modifications. For consumers, the message is equally clear: your click has consequences, even if you did not read the fine print. However, the law provides significant protections against unfair terms, and courts are increasingly willing to enforce them.

The future of digital consent lies not in the perpetuation of the illusion of choice, but in the creation of genuine, informed, and meaningful consent that respects consumer rights and autonomy.

Reference

Table of Cases

United States Federal and State Cases

Nigerian Cases

Legislation and Statutes

Nigerian Legislation

International Legislation

Regulatory Bodies and Authorities

Secondary Sources and Commentary

Legal Commentary and Analysis

Academic References

Key Legal Principles from Case Law

The Two-Part Berman Test

For a website’s terms to be enforceable, a user must receive:

1. Reasonably conspicuous notice of the terms to which they will be bound
2. A requirement to take some action, such as clicking a button or checking a box, that unambiguously manifests their assent to those terms

Lovinfosse Doctrine

A unilateral modification clause that allows a party to alter terms “at any time and without notice” renders an arbitration agreement illusory and unenforceable, as the consumer could be bound to terms they were unaware of at the time of purchase

Sifuentes Principle

Merely emailing users notice of amendments to terms of service, without requiring affirmative consent (such as clicking a box), is insufficient to bind users to amended terms

Specht Browsewrap Rule

Browsewrap agreements are enforceable only when terms are presented conspicuously; a reasonably prudent internet user would not have notice of submerged terms

This article is provided for general informational purposes and does not constitute legal advice. Specialist legal advice should be sought on specific circumstances.