Eleventh Circuit Rules Small Print Can Sink Big Arbitration Clauses: What Businesses Need to Know About Online Terms of Service

If your business uses a website or app to sign up customers, a new Eleventh Circuit ruling should be on your radar. On May 1, 2026, the court issued a published opinion in Tejon v. Zeus Networks, LLC that clarifies — and narrows — when online terms of service are actually enforceable. The key takeaway: if your arbitration clause lives behind a hyperlink that users can easily overlook, a court may refuse to enforce it.

What Happened

Roger Tejon subscribed to Zeus Networks, a streaming service, through its iOS app. The subscription page displayed two large, prominent red buttons. Below those buttons, in small gray text, sat a hyperlink to Zeus's Terms of Service — a document containing a mandatory arbitration clause.

Tejon later sued Zeus under the Video Privacy Protection Act (VPPA), alleging that Zeus shared his viewing history with a social media company. Zeus moved to compel arbitration, arguing Tejon had agreed to the Terms of Service when he subscribed. The district court denied the motion, and the Eleventh Circuit affirmed.

The Legal Framework

The Eleventh Circuit applied Florida law, which recognizes two types of online agreements. A clickwrap agreement — where the user must affirmatively check a box or click an "I agree" button — is generally enforceable. A browsewrap agreement — where terms are accessible via hyperlink but require no affirmative acknowledgment — is enforceable only if the user had actual knowledge of the terms, or if the hyperlink was sufficiently conspicuous to put a reasonable person on inquiry notice.

The court’s analysis turned not just on whether the Terms of Service existed somewhere in the app, but on whether the design of the subscription page reasonably communicated that clicking to subscribe also meant agreeing to those terms. The court found Zeus's hyperlink failed that test. The link appeared in small gray text that did not stand out against the page background, sat below two dominant red buttons that drew the eye elsewhere, and was not paired with language telling the user that by subscribing they were agreeing to arbitrate disputes. In the court’s view, those design choices undermined any claim that the user had fair notice.

Because the court found no sufficient notice or assent under Florida contract principles, it did not need to accept Zeus’s alternative theories for enforcing the arbitration clause once contract formation failed at the threshold.

A Divided Court

The decision was not unanimous. Judge Branch dissented, arguing that the hyperlink was underlined and positioned near the action buttons on an otherwise clean, uncluttered page. The dissent also criticized the majority for leaning too heavily on decisions from the Ninth and Second Circuits — courts that apply stricter standards — rather than Florida's more holistic approach to contract formation.

The split signals that this area of law remains unsettled, even within the Eleventh Circuit, and that fact-specific arguments about page design can cut either way.

What This Means for Businesses

The Tejon decision reinforces a practical lesson for businesses: if you want customers bound by your terms of service — especially an arbitration clause — you need to make sure they cannot miss them.

Businesses that rely on browsewrap-style hyperlinks face greater risk because courts are more likely to enforce clickwrap designs that require an affirmative act of assent and make the consequences of clicking clear to the user.

Practically speaking, businesses should consider replacing buried hyperlinks with clickwrap agreements that require users to check a box or click “I agree” before completing a transaction.. If you use a browsewrap approach, make the hyperlink visually prominent — use a contrasting color (blue, not gray), a larger font, and place it near the action button rather than below it, accompanied by explicit language, such as "By subscribing, you agree to our Terms of Service, which include a binding arbitration clause." Lastly, review your existing subscription flows to assess whether a court applying Florida or Georgia law would find your disclosure conspicuous.

The Tejon ruling is a reminder that courts look at the practical realities of online sign-up pages, not just the technical availability of the terms. A well-drafted arbitration clause is worthless if users never had a fair chance to see it.

The attorneys at our firm regularly advise businesses on contract, employment, and litigation matters throughout Georgia, Florida, and Alabama. Contact us to discuss how this ruling may affect your business.