Courts Tighten Enforcement Standards for Online Terms of Service
Courts increasingly enforce online terms when users get clear notice and affirmatively agree.
Why it matters: As digital contracts dominate transactions, legal pros must grasp evolving enforcement rules to guide clients on compliance and risks associated with online agreements.
- Second, Sixth, Seventh, Ninth Circuits and CA appellate courts enforce online terms given conspicuous notice and clear assent.
- Ninth Circuit rejected JustAnswer's sign-in wrap in April 2025 for insufficiently clear, conspicuous terms.
- PA Superior Court's March 2026 Duffy v. Tatum ruling demands explicit waiver language and prominent arbitration clauses.
- Eleventh Circuit in May 2026 invalidated browsewrap arbitration for inconspicuous hyperlink buried beneath large CTA buttons.
Recent court decisions throughout the U.S. have sharpened the standards for enforcing online contract terms, signaling a shift toward stricter judicial scrutiny.
The Second, Sixth, Seventh, and Ninth Circuits, as well as California appellate courts, have confirmed that online terms of service are enforceable when users receive reasonably conspicuous notice paired with an affirmative action that clearly indicates assent, according to the National Law Review. This approach strengthens protections against ambiguous digital agreements.
On April 15, 2025, the Ninth Circuit upheld a lower court's rejection of JustAnswer's sign-in wrap terms, emphasizing the need for clear and conspicuous presentation of online user agreements. Fenwick & West noted this as a "stricter view on how online user agreements are presented" in its analysis here.
Similarly, the Pennsylvania Superior Court in March 2026 revived heightened scrutiny in Duffy v. Tatum, borrowing from the Chilutti test. This ruling requires explicit statements about waiving jury trial rights and prominently displayed arbitration clauses to enforce online arbitration agreements, as highlighted by Montgomery McCracken Walker & Rhoads LLP.
Meanwhile, the Eleventh Circuit's May 1, 2026 decision in Tejon v. Zeus Networks invalidated a browsewrap arbitration agreement because the hyperlink was a small, gray link buried beneath large red call-to-action buttons, failing the conspicuousness standard under Florida law. This ruling was detailed by TCPAWorld.
These rulings collectively underscore the courts’ insistence that digital contract terms must be presented clearly and affirmatively agreed to, reinforcing legal risks for companies relying on subtle or buried online terms.
By the numbers:
- 4 federal circuits plus California appellate courts — jurisdictions enforcing online contract terms under conspicuous notice and assent standard
- April 15, 2025 — Ninth Circuit decision rejecting JustAnswer's sign-in wrap for unclear terms
- March 2026 — Pennsylvania Superior Court’s Duffy v. Tatum applying heightened arbitration agreement scrutiny
- May 1, 2026 — Eleventh Circuit ruling invalidating browsewrap arbitration due to inconspicuous hyperlink
Yes, but: While courts emphasize clear disclosure and affirmative assent, the lack of uniform standards means businesses must carefully evaluate presentation methods to avoid disputes.
What's next: Expect continued appellate rulings refining what constitutes legally sufficient notice and assent in online terms, impacting contract design.