Baird Straughan, April 2021
Online waivers speed up event registration, reduce paperwork, and liberate organizers so they can concentrate on the event itself and the people attending. Nevertheless, some of our client organizations worry that if an accident occurred, courts wouldn’t respect a waiver that’s not on paper. What’s the truth?
Short answer: At present, an electronic waiver is legally as good as a written waiver in U.S. courts, so long as it’s properly constructed.
The federal “E-SIGN” statute from 2000 legalizes the use of electronic and online waivers, and courts have respected this principle. It states that a
. . . signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
Doyice Cotten of Sportwaiver has “found no cases in which a waiver has failed simply because it was not a paper waiver. They do fail on occasion, but for the same reason that paper waivers fail – poorly written or against public policy.”
Courts have rejected arguments that waivers are insufficient because they are signed online. For example, in a Colorado case (Berenson v. USA Hockey, Inc. (2013)) a person sued arguing the online waiver did not provide sufficient proof of the agreement (plaintiff argued the online waiver didn’t prove she had signed it). The courts ruled in favor of the defendant, USA Hockey, upholding the online waiver.
Different states handle liability differently, so your nonprofit should get advice from an attorney versed in your state’s laws to make sure your waiver has the right components. Many of our clients find law firms who advise them pro-bono.
From our experience constructing online waivers in WaterGrass, we’ve built a list of the some basic rules electronic waivers should follow:
- The waiver should be “click-wrapped,” meaning that the participant can’t complete the electronic signup without completing the waiver first. In some court cases plaintiffs have alleged that they signed up for the activity but never saw the waiver. The defendant organizations were able to show that the waiver’s programing made it impossible to sign up without clicking on the “I agree to the terms and conditions” button. (WaterGrass waivers are constructed this way – if the event requires a waiver, then a registrant has to agree to it before they can register. WaterGrass also stores which waiver the participant agreed to.)
- The waiver establishes that the registrant is a volunteer – meaning that they expect no payment or benefits, and they know they are not eligible for compensation in the case of an accident. (If participants are remunerated, they qualify as employees, and generally have a right to coverage.)
- It contains a listing of potential hazards they may be exposed to if they choose to participate, and explicitly mentions negligence as a waived condition.
- It establishes that they sign the waiver of their own free will.
- … that they assume all risks and agree to “hold harmless” the organization in the case of an accident.
- … and that they agree to “indemnify” the organization for expenses incurred as a result of their participation. (Ie. Hospital costs if there’s an accident.)
Those are some of the conditions that protect your organization from unexpected financial claims.
There are optional best practices as well:
- The waiver may include a release of rights to photos or videos made by the organization that include the volunteer. Volunteer events are some of the most “photogenic” opportunities you’ll get to showcase your people and your mission, so get permission to use the photos you take.
- The registration page should display the waiver’s title prominently within the registration form, identifying it as a “Release” or “Waiver of Liability.” In some judgments, courts have cited the prominence of the title as an additional reason to find the waiver valid.
- The form should display the full waiver text on the screen, rather than within an abbreviated window with a scroll bar. In this way, you require the participant to at least page through the whole length of the waiver before they can sign. They may not read it, but they won’t be able to say they didn’t see it.
- The waiver form should give the volunteer both the chance to accept and to reject it. If they reject it, a pop-up informs them that they can’t participate with signing the waiver, and invites them to join a different activity. (Thanks to Milwaukee Riverkeeper for the last two suggestions.)
As a starting point for your waivers, there are plenty of templates online. But states have different terms of art and different requirements, so you should always check out your final version with an attorney who knows local laws.