What if my e-communication is directed towards minors? (cont’d)
(b) Contract law
E-reputation does not depend entirely on communication between the company and its clients and also depends on the actual provision of the goods or services of the company.
Many websites require agreeing to terms of use; likewise, many advertising campaigns have a promotional dimension (e.g. games or competitions). In reality, though, agreeing to the terms of use or to the terms and conditions of the competition is tantamount to acceptance of contractual terms. However, it would appear that companies do not often ask themselves whether the contractual terms imposed on minors at the time of communication with him or her are actually valid.
To be enforceable against the minor, these contractual terms must comply with various requirements.
First, as is the case with adults, the minor must have had the actual possibility of becoming aware of the terms and must have accepted them in a definite manner (even tacitly) [Note: Q. VAN ENIS, ‘L’opposabilité des conditions générales off line et on line : de la suite dans les idées ?’, in Les conditions générales, Anthemis, Louvain-la-Neuve, 2009, pp. 12-17.]. This already implies that terms must be presented in a comprehensible (not in letters that are illegible due to their small font size [Note: See Commercial Court of Hasselt, 2 October 2007, R.W. 2008-2009, p. 548.], etc.) and accessible manner (clear and visible location, sometimes even required for access to content). In this respect, it is important to take into account the degree of maturity of the minor when assessing the degree to which there is an actual possibility of becoming aware of the terms. A company would do well to forgo the illusion that terms of use of a website, which are generally difficult to read, even for adults, will be understandable for a minor.
Next comes the general question of whether a minor can validly accept such terms, given that he or she should normally be represented by his or her parents. One is nevertheless entitled to doubt whether a minor will ask his or her parents to accept terms and conditions on the Internet. Following this logic, though, the consent by a minor to contractual terms will only be valid if these terms do not harm his or her interests. Consequently, a company that wishes to enter into contracts with minors will be well advised to propose balanced and easily understandable terms, bearing in mind the risk that any obligation for the minor could be deemed not to be enforceable.