Recent decisions from the Second, Sixth, Seventh, and Ninth circuits, as well as California appellate courts, confirm a consistent rule: online terms are enforceable when users receive reasonably conspicuous notice of the terms and take an action that clearly manifests assent. Courts have applied this rule through a granular, interface-focused analysis, producing a developing body of considerations for online contract formation.
Below is a synthesis of key holdings showing what courts have accepted — and rejected — as sufficient notice and assent.
Design Practices Courts Have Enforced
Courts have consistently enforced online terms where the interface tightly couples clear, proximate disclosure with an affirmative action that signals agreement. Accordingly, stakeholders may wish to take the following actions:
- Place terms near the action button. Courts may find notice reasonably conspicuous where the terms appear immediately below or near the action button and the button expressly conveys agreement to the hyperlinked terms.
- Make the hyperlink visually obvious.Notice may be adequate, and assent unambiguous, where the hyperlink appears directly above or below the action button in contrasting text — such as larger font, contrasting color, and underlining — on an uncluttered screen that clearly calls attention to the terms.
- Tell users that clicking means acceptance.Notice may be reasonably conspicuous where the checkout page is simple; the disclosure clearly states that submitting an order or pressing the action button constitutes acceptance of the terms (e.g., “By clicking agree, I acknowledge and accept . . .”); and the hyperlink to the terms is visually distinct.
- Avoid jargon. Use clear labels instead of acronyms — for example, “Terms of Service” instead of “TOS” — so a reasonably prudent user can understand what the interface language means and recognize common website conventions for hyperlinked terms and privacy notices.
- Maintain adequate records. Preserve records showing that each version of the registration, checkout, or sign-in process provided adequate disclosures and acceptance mechanisms, as well as the date and means by which each user accepted the terms.
Design Practices Courts Have Rejected
Conversely, courts have rejected terms where either notice or assent — or both — break down due to poor design or ambiguity:
- Passive hyperlinks without affirmative action. Browsewraps may be unenforceable where the hyperlink appears on every page, but users are not prompted to act or otherwise notified of the terms; proximity alone may be insufficient without assent.
- Inconspicuous design and small font. Disclosures may be found unenforceable, and consent ambiguous, where the terms are not reasonably conspicuous — for example, where they appear in small gray font that does not resemble a typical blue hyperlink or are obscured by other content.
- Failure to clearly tie user action to assent. Terms may be found unenforceable, and no contract formed, where users are not clearly advised that their actions signal agreement and the disclosures are insufficiently conspicuous.
- Confusing multi-screen flows. Sign-in wrap agreements may be unenforceable where multiple sign-up screens make it unclear that clicking “Continue” constitutes agreement to the terms, especially where disclosures are not prominently displayed.
Practical Takeaways
Taken together, recent case law confirms that enforceable online terms require clear, conspicuous notice placed near the relevant action, coupled with an unambiguous manifestation of assent tied to that action.
- Notice may fail where terms are merely available, inconspicuous, or detached from the transaction.
- Assent may fail where the user’s action is not explicitly tied to agreement or where the interface creates ambiguity as to what the user is accepting.
- Notice and assent may be satisfied where the disclosure is clear, proximate, and visually prominent, and the user takes an action expressly linked to agreement (even without a checkbox).
Online contract formation now depends as much on interface design as on legal drafting. Courts ask not only what the terms say, but whether a reasonable user had a fair opportunity to notice and accept them. Companies should consider their user enrollment, checkout, and sign-in flows to confirm notice and assent are unmistakable — and may wish to preserve records showing the user journey, including when and how users accepted the terms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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