The last few years have had several decisions from state and federal courts of appeals addressing when “clickwrap” or “browsewrap” arbitration agreements are enforceable. “A clickwrap agreement requires a user to check a box or click a button to acknowledge acceptance of the agreement’s terms and conditions,” and “a browsewrap agreement contains hyperlinked terms, and the user’s consent is implied by continued use of the website.”
Today, in Tejon v. Zeus Networks, a divided panel of the Eleventh Circuit held that, under Florida law, a browsewrap agreement was unenforceable against a consumer because the hyperlink was not conspicuous, as it was placed “beneath two large, red action buttons that were prominently featured at the center of the page,” “in a small font on the bottom half of the page,” and “in a dim, gray color.”
Dissenting, Judge Branch faulted the majority for relying on cases applying New York and California law, and would have found the link sufficiently conspicuous.
