Eleventh Circuit Rejects Browsewrap Arbitration in Zeus Case Over Inconspicuous Terms Link

The U.S. Court of Appeals for the Eleventh Circuit has affirmed a lower court decision refusing to enforce an arbitration agreement tied to a streaming service subscription, finding that the website design failed to provide adequate notice of the terms. In Tejon v. Zeus Networks, LLC, the court held that the platform’s Browsewrap agreement did not meet the legal standard for conspicuousness under Florida law, preventing enforcement of a mandatory arbitration clause.

The case centers on whether a reasonably prudent user would have been on notice of the terms of service, which were accessible only through a small, gray hyperlink positioned beneath large subscription buttons.

Court Focuses on Website Design and User Notice

The dispute arose after plaintiff Roger Tejon subscribed to Zeus Networks’ streaming platform and later alleged violations of the federal Video Privacy Protection Act (VPPA) related to the sharing of his viewing data. Zeus sought to compel arbitration based on a clause contained within its terms of service.

Users subscribing to the platform encountered a “Choose your plan” page with two prominent red buttons for monthly or annual subscriptions. Beneath those buttons appeared a significantly smaller “Terms of Service” hyperlink in gray text. The link directed users to a separate page containing the arbitration provision.

The Eleventh Circuit applied Florida contract law, which distinguishes between Clickwrap agreements that require affirmative user consent and Browsewrap agreements that rely on implied consent through use of a website. Because Zeus used a Browsewrap format, the enforceability of the arbitration clause depended on whether the hyperlink provided sufficient notice.

The court concluded that it did not. It emphasized several design factors:

• The hyperlink appeared below highly visible call-to-action buttons, reducing the likelihood that users would notice it
• The text was small and displayed in a muted gray color that blended with surrounding content
• The hyperlink was not visually distinct beyond basic underlining
• The page lacked any clear statement that clicking a subscription button constituted agreement to the terms

Taken together, the court found that these elements failed to place a reasonably prudent internet user on inquiry notice of the arbitration agreement.

Majority and Dissent Split on Conspicuousness Standard

The majority opinion relied in part on prior decisions addressing online contract formation, including cases evaluating similar webpage layouts. It reiterated that businesses using Browsewrap agreements must design interfaces that clearly signal the existence of contractual terms, especially when those terms include arbitration provisions.

The court also noted that website operators are not required to use any single design feature, but must ensure that the overall presentation makes the terms noticeable to an ordinary user. It suggested that clickwrap agreements remain a more reliable method for establishing assent.

Judge Elizabeth Branch dissented, arguing that the hyperlink was sufficiently visible and that its placement near the subscription buttons should have drawn user attention. The dissent emphasized a more holistic interpretation of Florida precedent and criticized the majority for relying on out-of-state case law.

Why It Matters for Compliance and Digital Platforms

The decision adds to a growing body of case law scrutinizing online contract formation, particularly in the context of arbitration clauses. For companies operating subscription platforms, fintech applications, or digital servicing portals, the ruling reinforces the legal risk associated with passive Browsewrap designs.

From a compliance perspective, the case highlights several practical considerations:

• Terms of service links must be clearly visible and distinguishable from surrounding content
• Placement near key user actions is not sufficient if overshadowed by more prominent design elements
• Explicit language connecting user actions to acceptance of terms can strengthen enforceability
• Clickwrap mechanisms remain the most defensible approach for obtaining consent

For receivables management firms and service providers that rely on digital consumer interfaces, the ruling underscores the importance of aligning user experience design with legal standards for contract formation. Poorly structured disclosures may undermine enforceability of key provisions, including arbitration, consent to communications, and data usage terms.