- The Eleventh Circuit signaled increased scrutiny of digital consent design. In Tejon v. Zeus Networks, the court found that a browsewrap agreement was not enforceable because the terms hyperlink was not sufficiently conspicuous. The decision highlights that courts are looking beyond whether terms are available and focusing on whether consumers received meaningful notice of them.
- Browsewrap agreements face growing legal risk, while clickwrap remains the stronger approach. The court emphasized shortcomings such as hyperlink placement, font size, lack of visual prominence and the absence of any affirmative acknowledgment by users. The opinion suggests that requiring users to click an “I Agree” button or check a consent box provides a much stronger basis for enforcing arbitration clauses and other contractual terms.
- Financial institutions and fintechs should reassess their online enrollment and consent flows. Companies should consider adopting clickwrap mechanisms, making hyperlinks more prominent, clearly disclosing arbitration and class action waiver provisions near the point of acceptance and testing disclosures on mobile devices. The ruling underscores that enforceability increasingly depends on how disclosures are presented, not just what they say.
Article
11th Circ. Ruling Reflects Shift In Digital Consent Frameworks
Law360
June 29, 2026Estimated Read Time: 1 min
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