A recent ruling by the Italian Court of Cassation addressed whether a checkbox tick constitutes a valid written approval of an unfair clause under Article 1341, paragraph 2, of the Italian Civil Code, by means of a digital signature in the context of B2B online contracts. The Court held that it does not — a conclusion that has direct implications for any company operating on the basis of standard terms and conditions accepted online.
The case in brief
A company operating a hospitality facility entered an electricity supply contract with a major energy provider. The contract was concluded online. Starting from June 2023, the company noticed that its electricity costs had increased significantly, without any prior notice having been received from the supplier. The company brought an action before the Court of Viterbo, asking the court to declare that the supplier had breached the contract.
The defendant raised a preliminary objection of territorial jurisdiction, relying on an exclusive jurisdiction clause contained in the general terms and conditions, which designated Rome as the only competent forum.
The Court of Viterbo ultimately declined its own territorial jurisdiction in favor of the Court of Rome, but not on the basis of the exclusive jurisdiction clause.
Notably, according to Articles 1341 and 1342 of the Civil Code, when a contract is unilaterally drafted by one of the parties – as in the case at stake where the contract was drafted by the energy provider – certain clauses of the contract providing burdensome obligations, including those derogating at the jurisdiction, must be specifically approved in writing by the counterparty, through a double-signature, to be enforceable.
The court found that exclusive jurisdiction clause had not been specifically subscribed by the customer, as required by Italian law, and was therefore ineffective.
The customer challenged this decision before the Court of Cassation. The supplier, in turn, maintained that the contract had been concluded through a “point and click” procedure, whereby the claimant had accepted the offer by accessing an online form and completing the subscription by ticking various checkboxes, and argued that the unfair clause establishing the exclusive conventional forum had been specifically approved by means of a double “flag”, in compliance with Article 1341 of the Civil Code.
With its order no. 20945 issued on June 20, 2026, the Court of Cassation confirmed the decision of the Court of Viterbo, finding that the contract, produced in PDF format, showed no evidence of a separate, specific approval of the exclusive jurisdiction clause, therefore being in breach of the abovementioned Article 1341.
The Court of Cassation’s key takeaway
- A checkbox tick is not enough
The Court noted that consumer protection rules were not applicable in this case, given that both contracting parties were “professionals” (making the contract B2B in nature), and that the question of whether Article 1341, paragraph 2, of the Civil Code applies to e-commerce must be resolved in light of Article 13(1) of Legislative Decree no. 70/2003, which provides that “the rules governing the conclusion of contracts shall also apply where the recipient of a good or service of the information society places their order by electronic means”.
It follows that, in order for unfair clauses contained in electronically concluded contracts, including an exclusive jurisdiction clause, to be effective, a double signature is required, in accordance with the requirements of Article 1341, paragraph 2, of the Civil Code.
In practice, this means that the service provider must build into its online contracting process a mechanism that allows the other party to specifically approve the unfair clause. A simple ticking of the relevant checkbox does not meet this standard on its own.
- The “light” signature is generally sufficient for online contracts
The Court drew a distinction between “light” digital signature (i.e., a set of electronic data attached to or logically associated with other electronic data and used as a method of digital authentication) and “heavy” digital signature (which involves a more rigorous procedure that guarantees a unique link to the signatory and their unambiguous identification). For contracts that are not required by law to be in a specific written form, the Court confirmed that a “light” signature is sufficient for the approval of an unfair clause.
In practice, the Court indicated that a one-time password (OTP) sent to the signatory via SMS or e-mail and entered on the web platform.
Practical implications and strategies for online contracting parties
This ruling carries significant practical consequences for any business that enters into contracts online and relies on general terms and conditions accepted via a web interface. The Court’s clarification that a mere checkbox tick does not satisfy the specific approval requirement under Article 1341, paragraph 2, of the Civil Code invites a closer look at a contracting mechanism widely used across online commerce between professionals. This analysis is premised on Italian law governing the contract, which is what triggers the application of Article 1341 Civil Code. Businesses that have historically relied on checkbox-based approval mechanisms should assess the extent of their contractual exposure and consider whether remedial steps are necessary or advisable.
That said, the Court’s language should be read with care. The Court did not hold that a checkbox tick proves nothing but rather than it is not per se sufficient. This formulation is not without significance: it suggests that the checkbox tick, when combined with additional safeguards designed to ensure the specificity and awareness of the approval, may potentially be argued to satisfy the requirements of Article 1341, paragraph 2, of the Civil Code.
The question, therefore, is whether the overall contracting process, taken as a whole, demonstrates a conscious and specific act of approval on the part of the accepting party. The outcome in any given case will depend on the specific architecture of the acceptance mechanism and the broader evidential context, rather than on the presence or absence of any single element in isolation. For businesses that draft and publish general terms and conditions accepted through a web interface, the adequacy of any given contracting flow will necessarily turn on the particular features of that flow — an assessment that, by its nature, calls for close attention to the detail of each case.
