Digital Consent and Article 147 of the Civil Code

Digital platforms and digital consent have triggered, over the past decade, a profound transformation in the nature of contractual relationships, placing users within a technical ecosystem that goes far beyond the traditional interaction between two equal parties. While civil law — under Article 147 — is grounded in the principle of freedom of contract built upon conscious and balanced will, the digital reality has introduced contractual practices that strip this principle of its substance. Acceptance has been reduced to a quick click of a button, burdening users with extensive obligations they neither understand nor have the ability to negotiate.

This study examines the legal challenges surrounding the validity of consent in electronic contracts. It analyzes the extent to which traditional contract theory can be applied to digital contracting models, while tracking modern legislative and judicial trends that redefine the boundaries of will in the age of the data economy.

Electronic Acceptance Between Technical Formalism and the Requirements of Genuine Will

The general theory of contract requires that a declaration of intent be conscious, free, and deliberate in order to be legally valid. Yet the modern digital environment has turned electronic acceptance into a formal procedure that often bypasses the essential elements of true consent. A mere click on “Accept” is sufficient to form a binding contract, even though the terms being accepted are typically written in dense, highly technical language, spread across dozens of pages that users have neither the time nor the ability to read. Some essential clauses are even buried within secondary links or subpages that ordinary users never reach.

In this context, electronic acceptance becomes a mechanical act rather than a conscious decision. It emerges as an instant response to a directed design structure rather than genuine understanding of the obligations involved. Users are placed within an interface where accessing the service is conditioned solely on clicking “accept,” with no real space for reflection, review, or meaningful choice. Thus, the expression of intent becomes merely an outward appearance of consent, while the underlying substance — comprehension, understanding, and free choice — remains absent or seriously impaired.

Despite this clear gap between appearance and reality, the law still often treats such acceptance as a full and effective declaration of will. This inconsistency between technical reality and traditional legal treatment raises a critical question: to what extent can electronic acceptance, in its current form, fulfill the necessary conditions for real consent? And can we continue equating a “click” with informed, mature will — the very foundation of contract theory?

Platform Contracts as a Modern Form of Adhesion Contracts

Article 147/1 of the Civil Code states that contracts are the law of the parties, but doctrine and case law agree that this principle presupposes genuine equality in bargaining power. When equality is absent — as in the case of digital platforms that unilaterally impose their terms — the relationship approaches the structure of adhesion contracts.

The elements of digital adhesion are manifested in:

• The platform’s monopoly over the service, leaving users with no easy alternatives
• The absence of negotiation, with terms presented in a rigid “take it or leave it” format
• A power imbalance allowing the stronger party to impose onerous terms
• The use of technical design to conceal information, including the use of dark patterns

These features place electronic contracts within the category of agreements that are subject to judicial oversight to protect the weaker party, despite the binding force of Article 147.

Personal Data as a New Contractual Object and Its Impact on Understanding Consent

Electronic contracts no longer revolve solely around the use of a service; they have expanded into mechanisms for exploiting personal data as a high-value economic asset. A user’s acceptance often includes granting the platform permission to process behavioral and cognitive data, share it with third parties, build personal profiles for marketing or credit scoring, and allow automated decision-making that may affect reputation or job opportunities.

This shift means that electronic acceptance now impacts fundamental rights that go well beyond the traditional contractual sphere. As a result, legal scholarship must reassess whether such acceptance can truly be considered free and informed consent.

The Limits of Contractual Freedom Under Article 147

Article 147 provides that “contracts are the law of the parties,” but this principle has never been absolute. Egyptian courts — like their counterparts around the world — recognize that contractual freedom cannot remain unchecked when contractual practices undermine genuine consent. Courts therefore intervene to establish safeguards that prevent misuse of this principle, limiting contractual binding force whenever consent is tainted by mistake, fraud, coercion, or exploitation, or when the contractual balance is distorted to the detriment of one party.

The binding force of a contract also weakens when its terms exceed what is customary or expected in similar transactions — whether due to vagueness, excessive expansion, or the inclusion of obligations unrelated to the purpose of the contract. The same applies to adhesion contracts, where consumers have no real ability to negotiate and are faced with a standard form that cannot be modified. Such circumstances justify judicial oversight aimed at protecting the weaker party and preventing powerful companies from abusing their dominant position.

Thus, Article 147 does not operate in isolation; it functions within a broader framework of principles that make genuine intent the cornerstone of contractual validity. This approach is particularly important in the digital environment, where the imbalance between the party drafting the terms and the party merely clicking “accept” is pronounced.

Applied to digital contracts, the absence of negotiation, deliberate complexity, and lack of clarity all weaken the validity of acceptance and subject the contract to judicial scrutiny. This scrutiny allows courts to strike out abusive clauses, interpret ambiguities in favor of users, or deem consent incomplete where it was distorted by manipulative user-interface design.

European and American Judicial Trends Toward “Informed Consent”

The last decade has witnessed landmark decisions in Europe and the United States that introduce a new vision of digital contracting and reevaluate the validity of electronic consent whenever it lacks clarity or when users are unable to grasp its consequences. Courts have invalidated essential clauses hidden within secondary links or obscure pages, considering such concealment incompatible with modern standards of disclosure.

Courts have also addressed clauses drafted in unnecessarily complex or excessively long terms, treating complexity itself as a defect in consent. Consent is not valid unless based on a reasonable understanding of the obligations it creates. Similarly, courts have limited the binding force of electronic acceptance when its effects severely impact fundamental rights such as privacy, reputation, or employment. In such cases, a formal click cannot substitute for genuine awareness.

Alongside this, courts increasingly recognize the structural imbalance of power between users and platforms. Free will cannot be presumed when one party controls the design, content, and access mechanisms, while the other faces an immutable contract with no negotiation space. This recognition has become the basis for reevaluating user obligations and restricting unfair terms imposed under the guise of electronic acceptance.

Collectively, these trends signal a shift toward a model in which electronic consent becomes binding only when it is informed consent — consent grounded in genuine clarity, full disclosure, and real understanding rather than a fleeting click assumed to embody complete awareness without factual support.

Toward Reconstructing the Doctrine of Electronic Consent

In this rapidly evolving reality, there is a pressing need to reshape the legal framework governing consent in electronic contracts so that it moves from a purely formal act to a conscious decision rooted in genuine understanding of the obligations involved. This requires adopting an approach based on greater transparency: clearly highlighting essential terms in simple, accessible language; requiring companies to provide concise legal summaries that capture the contract’s core content without forcing users to navigate dozens of pages of dense technical text.

It also requires restricting deceptive design practices — known as dark patterns — that steer users toward acceptance without understanding. This can be achieved by mandating clear and accessible refusal options. A complete framework must also guarantee the user’s right to reject non-essential terms without losing access to the service, especially on platforms that have become integral to everyday life and cannot be easily avoided.

Additionally, platform contracts should be subjected to rigorous consumer-protection oversight to evaluate unfair clauses and eliminate those that undermine contractual balance. Collectively, these tools redefine contractual relationships in digital environments without undermining Article 147; rather, they complement it with practical mechanisms that ensure electronic consent is genuine, not merely symbolic, and restore to users a measure of the power they have lost in a world dominated by large platforms.

Conclusion

The digital environment reveals a clear legal paradox: while the law often treats electronic acceptance as complete and effective will, reality treats it as a formal procedure imposed on users without negotiation. Although Article 147 remains the cornerstone of contractual theory, applying it to digital contracts requires a renewed understanding that takes into account power imbalances, the complexity of terms, and the economic role of personal data as the core object of the contract.

As technology and artificial intelligence continue to expand, the world is moving toward a stage in which the concept of consent is reshaped so that electronic acceptance becomes a legal act that requires protections and guarantees commensurate with its profound impact on individual rights and freedoms.

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