How can a company ensure that its clickwrap agreements for services are worth more than just the pixels they’re displayed on? In a recent ruling from the U.S. Court of Appeals for the Eleventh Circuit, the answer may be as simple as a company employee’s declaration describing the enrollment process and appending screenshots of pages a consumer would have encountered during enrollment, even if there is no evidence the consumer clicked on a link to read relevant terms and conditions or what that consumer actually saw. Establishing sufficient constructive notice can be difficult in any context, so the analysis in Newton v. Experian Information Solutions (11th Cir. July 28, 2025) provides a helpful playbook for companies employing hyperlinked terms and conditions in online enrollment processes.
What You Need to Know:
- A consumer sued Experian for violating the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681x, upon finding several inaccuracies in her credit file after using a credit monitoring service offered to her in the wake of a data breach.
- The Eleventh Circuit reversed a district court’s denial of Experian’s motion to compel arbitration that had been based on insufficient evidence of assent to arbitrate presented in a clickwrap agreement.
- The appeals court ruled that a declaration detailing the enrollment process a consumer would have encountered to be sufficient evidence of assent even where the consumer claimed not to have seen an arbitration agreement and “did not click anything” indicating a jury trial waiver.
In 2017, a hospital informed the plaintiff in Newton that her personal information was compromised in a data breach. The hospital offered, and plaintiff accepted, a free year of credit monitoring that she obtained by enrolling in an account through Experian’s affiliate, ConsumerInfo.com, Inc. Five years later, the plaintiff requested and obtained a copy of her credit file and found several inaccuracies. As a result, shesued Experian for violating the FCRA, alleging it failed to follow reasonable procedures to assure maximum possible accuracy in credit reporting.
Experian moved to compel arbitration agreement, citing a contract accessible through a hyperlink in the enrollment process. The district court denied Experian’s motion, reasoning that Experian had not carried its burden to show there was no genuine dispute of material fact as to assent. To support this conclusion, the district court noted that Experian’s declaration only attested to knowledge of what a consumer should have seen during enrollment, not what the plaintiff actually saw. Further, because plaintiff stated she was not aware that signing up for credit monitoring would result in a jury trial waiver, did not click anything indicating a waiver, and did not see an arbitration agreement or any mention of one, the district court found a genuine dispute of material fact as to her assent.
Experian disagreed that it had not carried its burden and appealed. The Eleventh Circuit explained that the question of whether clickwrap agreements form valid contracts depends on state law, which in Georgia requires all parties to assent to all conditions. Georgia (and other) courts have long held that failure to read does not excuse a party’s obligations under a contract, and because a reasonably prudent internet user knows that a text highlighted in blue links to a page where additional information is displayed, being presented with a link to a contract constitutes constructive notice of its terms.
To establish the constructive notice, Experian submitted a detailed declaration containing the following information:
- The declarant’s position with the company and familiarity with its enrollment process and business records;
- A confirmation of membership details such as date and time of enrollment and terms to which the consumer agreed; and
- The exact path the consumer would have encountered when enrolling.
The Eleventh Circuit deemed this information, along with screenshots of the webforms the consumer would have encountered during enrollment, to provide sufficient evidence of acceptance of the terms of use and the arbitration agreement contained therein. Despite not showing what the particular plaintiff saw, this information was enough. Thus, the court reversed and remanded the case.
The Newton ruling is important for multiple reasons. First, as clickwrap agreements proliferate, companies should continue to monitor developments in basic contract law to ensure enforceability rather than relying on forms. Despite being digital age agreements, establishing mutual assent ultimately comes down to good old-fashioned contract law. Second, practitioners should consider creative ways to demonstrate the sufficiency of a consumer’s assent in digital agreements based on information presented to consumers during an enrollment or purchase process even if they can’t pinpoint exactly what a particular consumer saw.
Be aware, though, that Experian’s solution may not be one-size-fits-all; as the Eleventh Circuit noted, the enforceability of clickwrap agreements depends on state contract law, so practitioners and institutions should consider whether the declaration provided in Newton will be sufficient under applicable law.
In addition, there is no substitute for (user) experience – the Newton court noted that in a prior case, the Georgia Court of Appeals found a question of material fact precluding compelling arbitration where the plaintiff submitted evidence that a link to terms of use was obscured by a pop-up keyboard when viewed on an Android phone. So while a consumer can be bound by a link to a contract even if the consumer doesn’t read the contract, the consumer still has to be able to see the link to be bound.
