Fluent’s Terms and Conditions Too Small on Web to Be Enforceable

Digital marketer Fluent Inc. lost its bid to enforce a mandatory arbitration policy that appeared in small, gray font on its websites, when the Ninth Circuit ruled Tuesday that the policy was neither “reasonably conspicuous” nor affirmatively accepted by customers.

So-called browsewrap agreements—in which a website offers terms disclosed through a hyperlink and users supposedly agree to those terms by continuing to use the website—are typically enforceable only if users are given reasonably conspicuous notice of those terms and take a clear action showing their consent, the court said.

The notices on Fluent’s websites are the “antithesis of conspicuous,” because ...