A divided Eleventh Circuit panel held that an internet-based video programming platform could not enforce an arbitration agreement against a suing customer because the agreement, inserted among the website’s hyperlinked terms and conditions, was insufficiently conspicuous to put a reasonably prudent person on notice of its existence. Tejon v. Zeus Networks, LLC,2026 WL 1194722 (May 1, 2026). The court’s methodology entailed a critique of the effectiveness of the design of the defendant’s website.
The plaintiff subscribed to defendant’s online video programming subscription service. The subscription page used by the plaintiff featured two large, red buttons for subscription plan selection: one annual and the other monthly. Lower on the page, among the smallest and least visible text, was a terms-of-service hyperlink that led to a different page with a mandatory arbitration provision. The subscription page did not alert the user to the existence of an arbitration provision among the terms and conditions. In his subsequent federal lawsuit, the plaintiff alleged that the defendant shared his viewing history and personally identifying information with a social media company without his consent, in violation of the federal Video Privacy Protection Act. The defendant moved to compel arbitration. The district court (S.D. Fla.) denied that motion, leading to the appeal.
In the Eleventh Circuit, the parties agreed that the agreement in question was a “browsewrap” agreement (in which the terms are hyperlinked and the user’s consent is implied by continued use of the website) as opposed to a “clickwrap” agreement (in which the user checks a box or clicks a button to acknowledge acceptance of the terms). The parties also agreed that Florida law governed the contractual questions.
In an opinion by Judge Embry Kidd, the panel majority explained that browsewrap agreements are enforced under Florida law only if the purchaser has actual knowledge of the terms and additions or where the hyperlink to them is conspicuous enough to put a reasonably prudent person on inquiry notice. That analysis requires the court to evaluate the general design and content of the page containing the hyperlink. “Relevant design elements include the location of the hyperlink on the page, its proximity to buttons the user must click, and its font size, format and color,” the court explained. Also relevant is whether the page provided an explicit textual notice that taking a certain action would constitute acceptance of the website’s terms.
The court concluded that the defendant’s hyperlink was not conspicuous. Its location beneath the large, red action buttons; relatively small font size on the bottom of the page; and dim, gray color that matched the surrounding text fell short of establishing conspicuousness. The court also cited as noteworthy the fact that the terms of service notice did not say anything about arbitration, though it would have been easy enough to do so. The court concluded by noting that none of the foregoing features was individually required to pass a conspicuousness assessment. Together, though, the shortcomings were such that the court would not enforce the agreement, and it affirmed the district court. The majority’s discussion relied throughout on a Ninth Circuit case reaching the same result, Berman v. Freedom Fin. Network, LLC, 30 F. 4th 849, 856 (9th Cir. 2022).
Judge Lisa Branch dissented, in an opinion that gives every appearance of having originated as a draft of a majority opinion. The dissent faulted the majority for heavily relying on out-of-state case law (primarily, Berman) and for assigning too much weight to the hyperlink’s location on the page beneath the action buttons.