The Italian Supreme Court Rules Against "Point-and-Click" Acceptance of Unfair Terms in Online Contracts

The case

A hotel company based in the province of Viterbo brought proceedings before the Court of Viterbo against its electricity supplier, complaining of an unjustified increase in billing costs. The defendant supplier raised a plea of lack of territorial jurisdiction, invoking a clause contained in the general terms and conditions that conferred exclusive jurisdiction on the Court of Rome.

The contract had been concluded electronically by means of a double click on a checkbox ("flag"). The question therefore arose whether this method of acceptance could be regarded as satisfying the requirement of specific written approval applicable to unfair contract terms. The Italian Supreme Court (Corte di Cassazione) addressed this question in order No. 20945 of 2026.

The Court's decision

The Court's reasoning starts from Article 1341, second paragraph, of the Italian Civil Code, which provides that clauses particularly burdensome for the adhering party — including those limiting liability, derogating from the jurisdiction of the ordinary courts, or providing for automatic renewal of the contract — have no effect unless specifically approved in writing. According to settled interpretation, such approval requires a separate and distinct signature from the one affixed at the end of the contract.

With regard to contracts concluded electronically, the Court referred to Article 13 of Legislative Decree No. 70 of 2003 on electronic commerce, according to which the same rules applicable to paper-based contracts apply.

The Court further clarified that, where the contract does not require any particular form — as in the case of an electricity supply agreement — a simple electronic signature is sufficient. This is defined by Regulation (EU) No. 910/2014 (eIDAS) as data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign. A one-time password (OTP) received by SMS or email falls within this category.

By contrast, the mere ticking of a checkbox does not, according to the Court, amount to an electronic signature in the technical sense and is therefore not capable of satisfying the requirement of specific approval of unfair terms, since it cannot demonstrate that the adhering party was actually aware of the contractual content being accepted.

The reasoning behind the decision

The ruling does not affect the validity of contracts concluded electronically as such; their admissibility is not called into question. It concerns specifically those cases in which a contract contains terms particularly unfavourable to one of the parties, for which the law requires an additional element capable of demonstrating the adhering party's genuine awareness.

The notion of electronic signature adopted by the European legislator is deliberately broad and technologically neutral, as it does not identify any specific method of signing. It nevertheless requires the existence of a link attributable to the signatory. A simple click on a checkbox is a gesture lacking sufficient identifying elements, since it does not allow one to establish with certainty who performed it, nor whether it was preceded by an actual reading of the contractual content.

On this point, legal scholarship (Finocchiaro, Greco) has observed that the attributability of a declaration of intent may also depend on elements inherent to the signing process itself, such as prior identification of the signatory, and not solely on the nature of the signature used. Had the sending of an OTP code been provided for prior to the ticking of the checkbox, the Court's assessment would likely have been different.

Prior case law from lower courts

The ruling follows a line of reasoning already emerging in lower court case law. The Court of Pesaro, in judgment No. 401 of 2024, had declared ineffective an arbitration clause approved by point-and-click. The Court of Salerno, in judgment No. 5263 of 2024, had similarly held that this method is not sufficient to ensure adequate approval of unfair terms.

A different view was taken by the Court of Arezzo, in judgment No. 727 of 2025, and by the Court of Latina, in judgment No. 742 of 2026, which held approval to be valid in cases where an advanced electronic signature (AES) had been used, as it offers guarantees superior to a simple checkbox tick.

Types of electronic signature

For a fuller understanding of the subject, the main categories of electronic signature recognised under Italian and EU law are set out below.

Simple electronic signature. This includes tools such as OTP codes, PINs, or passwords. It does not provide absolute certainty as to the signatory's identity but may satisfy the written form requirement where the court considers it adequate, pursuant to Article 20 of the Italian Digital Administration Code.

Advanced electronic signature (AES). This must be uniquely linked to the signatory, capable of identifying the signatory, created using means that the signatory can maintain under their sole control, and linked to the signed data in such a way that any subsequent alteration is detectable. Under Article 2702 of the Italian Civil Code, it is treated as equivalent to a private deed.

Digital signature and qualified electronic signature. These represent the highest level of security. The digital signature, in particular, is a solution specific to the Italian legal system, based on a cryptographic key system. These are the only forms of electronic signature suitable for contracts for which written form is required on pain of nullity, such as the sale of real estate.

Practical implications

For consumers, the ruling means that where acceptance of an online contract occurred solely through the ticking of a checkbox, any unfair terms contained therein — such as a derogation from the competent jurisdiction, penalty clauses that were not adequately highlighted, or automatic renewal clauses — may be devoid of legal effect.

For businesses and professionals operating in online sales, the decision calls for a review of the methods used to conclude contracts. The use of forms with checkboxes no longer appears sufficient to ensure the effectiveness of unfair terms. It is therefore advisable to adopt a genuine electronic signature system, such as the sending of an OTP code by SMS or email, or, preferably, the use of an advanced electronic signature.

Conclusion

In order No. 20945 of 2026, the Italian Supreme Court reaffirmed that, in the context of digital contracting, protection of the weaker contracting party cannot be regarded as ensured by a simple click on a checkbox. An additional element is required, capable of demonstrating that the party genuinely understood the content of the terms accepted.