The Eleventh Circuit recently held in Tejon v. Zeus Networks 2026 WL 1194722 (11th Cir. 2026) that that a browsewrap arbitration agreement was unenforceable under Florida law because the hyperlinked terms (placed under red buttons and written in small, gray text that a user did not have to click) were not sufficiently conspicuous to place a reasonably prudent user on inquiry notice.
The last few years have seen a growing number of court decisions addressing when online arbitration agreements—particularly clickwrap and browsewrap—are enforceable. Courts continue to draw a meaningful distinction between the two. A clickwrap agreement requires a user to take an affirmative step, like checking a box or clicking a button, to accept terms, while a browsewrap agreement relies on passive consent, with terms presented via hyperlink and assent inferred from use of the site.
The case arose from Zeus’s online subscription platform, where users were presented with a “Choose your plan” page featuring two large, prominent red buttons. Beneath those buttons appeared much smaller, gray hyperlinked text labeled “Terms of Service”—one of the least visible elements on the page—which linked to a separate page containing a mandatory arbitration clause. After subscribing, plaintiff used the platform and later alleged that Zeus shared his viewing history and PII without his consent, in violation of the Video Privacy Protection Act (“VPPA”).
The page looked like this:
The Eleventh Circuit, relying on Berman, focused on whether the design of the page put a reasonably prudent user on inquiry notice of those terms.
It did not.
The opinion reads like a direct violation of several core Queenie’s Ten principles: the disclosure was not proximate to the call-to-action, it was not conspicuous (small font, gray-on-gray), the hyperlink was not bold or visually distinct, and there was no clear statement that clicking the button constituted consent.
The hyperlink was placed below the two RED large call-to-action buttons, displayed in a small font, and rendered in a dim gray color that blended in with surrounding text:
“Zeus’s terms of service hyperlink is printed in a small font on the bottom half of the page. It is easy to overlook given the larger font sizes and bolder colors of other elements on the page….Although “Terms of Service” is underlined, indicating the presence of a hyperlink, it is otherwise indistinguishable from the informational text of the same size and color surrounding it.”
“As in Berman, Zeus’s hyperlink is not highlighted in a different color and is not in all capital letters. The surrounding clutter regarding payment details and age requirements competes for the user’s attention and further obscures the terms.”
Users are not expected to scroll past prominent buttons or scrutinize low-visibility text to discover contractual provisions, and “consumers cannot be required to hover their mouse over otherwise plain-looking text or aimlessly click on words … to ferret out hyperlinks. In other words, the “inquiry notice standard demands conspicuousness tailored to the reasonably prudent Internet user, not to the expert user, [so] the design of the hyperlinks must put such a user on notice of their existence.” Berman, 30 F.4th at 857.
The court also emphasized the absence of any clear statement tying the user’s action—clicking a subscription button—to acceptance of the terms. There was no language indicating that by clicking, the user agreed to the Terms of Service, much less to arbitration.
Looking at the totality of the page design, including placement, font size, color, and overall presentation, the 11th Cir. held that the hyperlink was not sufficiently conspicuous to establish inquiry notice and therefore refused to compel arbitration:
None of the things that we have discussed—location on the page, font size, contrasting color, capital letters, underlining, informational content, and so forth—is individually required to pass a conspicuousness assessment. The point of these design elements is to place a reasonably prudent internet user on notice of the agreement at issue. The internet site owner may utilize some combination of these elements, or perhaps something else entirely, to bring attention to the agreement. Even better, the owner could use a clickwrap agreement.
Judge Branch dissented, criticizing the majority for relying on precedent from California and New York and concluding that the hyperlink was sufficiently conspicuous under applicable law.
For folks relying on online consents, it is critical to keep in mind that while arbitration remains favored as a matter of federal policy, courts will not enforce arbitration provisions where the user was not given meaningful notice. This is exactly the type of disclosure failure Queenie’s Ten is intended to prevent—and exactly why those best practices have become so critical in defending consent in today’s litigation environment. Make sure to give your webflows and arbitration agreements a close review. And if you’re not sure where to start, Troutman Amin, LLP is here to help with best practices to keep your website your terms enforceable.
I’ll be stressing the importance of conspicuous disclosures live on stage TOMORROW at the Law Conference of Champions IV, and for those not in attendance…you’ll definitely be missing out.
Xoxo
Queenie
Discover more from TCPAWorld
Subscribe to get the latest posts sent to your email.