Whether the user agreed, which decides arbitration and everything else.
Esshaki Legal Media TeamCurrent as of July 2026
Online contracts are enforced where the user had reasonable notice of the terms
and manifested assent. How the interface is designed decides both.
Clickwrap. The user affirmatively clicks to accept, with the terms available
by a conspicuous link adjacent to the button. Routinely enforced.
Browsewrap. Terms available by a link somewhere on the page, with assent
inferred from use. Routinely unenforced absent actual knowledge.
Sign-in wrap. A statement adjacent to the action button that proceeding
constitutes acceptance, with a hyperlink. Enforceability turns on conspicuousness
— font size, contrast, placement, and whether the hyperlink is visually
identifiable as a link.
Evidence of assent. Retain the interface as presented on the date of the
user’s action, the version of the terms then in force, and the account record of
the action. Screenshots of the current site do not prove what a user saw three
years ago.
Modification. Terms reserving a right to amend by posting are frequently
unenforceable as illusory unless notice is given and continued use follows.
Emailed notice with a stated effective date is the defensible approach.
Arbitration and class waivers live or die on this analysis, which is why
interface design is a legal question as much as a product one.