IANAL either but I've researched this issue some. Still, nothing I say should be construed as reliable legal information.
Automatic acceptance of ToS is described as "clickwrap" or "browsewrap", depending on whether the ToS is expected to be accepted by going to any page deeper than the home page (browsewrap) or whether it's accepted by, say, clicking a button. This is determined by the text on the site. For example, clickwrap would say "By clicking 'Search', you accept our terms of use." Browsewrap would be some text that reads "By using this site, you accept our terms of use."
At present, it's mostly case-by-case, and it generally hinges on whether or not the consumer had sufficient notice that taking an action resulted in acceptance of the contract. If that claim were to go to court, the argument would be about the location of the notice and whether or not a reasonable person would've realized they were agreeing to the terms (assuming that the accused's knowledge of the terms cannot be directly established, e.g., the author states that she was not aware she was bound by the Terms of Use).
People have a bad habit of assuming that technology law is somewhat reasonable. That's not the case. Because technology is foreign and magical to most people, and also because technology is very fast-paced and law is very slow-paced, and thirdly because most people don't have to be aware of these legal technicalities and can violate them without ever running into trouble or even realizing they've broken the law, ensuring that these things remain obscure political issues, tech law is in a pretty sorry state.
Automatic acceptance of ToS is described as "clickwrap" or "browsewrap", depending on whether the ToS is expected to be accepted by going to any page deeper than the home page (browsewrap) or whether it's accepted by, say, clicking a button. This is determined by the text on the site. For example, clickwrap would say "By clicking 'Search', you accept our terms of use." Browsewrap would be some text that reads "By using this site, you accept our terms of use."
At present, it's mostly case-by-case, and it generally hinges on whether or not the consumer had sufficient notice that taking an action resulted in acceptance of the contract. If that claim were to go to court, the argument would be about the location of the notice and whether or not a reasonable person would've realized they were agreeing to the terms (assuming that the accused's knowledge of the terms cannot be directly established, e.g., the author states that she was not aware she was bound by the Terms of Use).
People have a bad habit of assuming that technology law is somewhat reasonable. That's not the case. Because technology is foreign and magical to most people, and also because technology is very fast-paced and law is very slow-paced, and thirdly because most people don't have to be aware of these legal technicalities and can violate them without ever running into trouble or even realizing they've broken the law, ensuring that these things remain obscure political issues, tech law is in a pretty sorry state.