05/07/2026
The Eleventh Circuit Court of Appeals ruled in a May 1st decision that an arbitration agreement found on a company’s internet-based platform that offers prerecorded video programming was insufficient to bind the subscriber in a dispute between the provider and subscriber. The provider buried the page containing the arbitration agreement behind a hyperlink that itself was written in small, gray text that the subscriber did not have to click. The text was located beneath large, red action buttons that the subscriber did have to click.
The Federal Arbitration Act reflects a liberal federal policy favoring arbitration. Under the Act, state law determines whether an arbitration agreement exists. Florida recognizes two categories of internet agreements, clickwrap and browsewrap agreements. A clickwrap agreement requires a user to check a box or click a button to acknowledge acceptance of the agreement’s terms and conditions. A browsewrap agreement contains hyperlinked terms, and the user’s consent is implied by continued use of the website.
Browsewrap agreements can be problematic because consumers are frequently left unaware that contractual terms were even offered, much less that continued use of the website will be deemed to manifest acceptance of those terms. Florida courts will enforce such agreements only if the user has actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice. In this case, the hyperlink was not sufficiently conspicuous.
