Clickwrap vs Browsewrap: How Courts Treat Each Way of Presenting Online Terms

The definitions in the table follow the Ninth Circuit's description in Keebaugh v. Warner Bros. Entertainment, decided 26 April 2024, which adopts the classification used by the California Court of Appeal in Sellers v. JustAnswer in 2021. That court sorted internet contracts by the way a person purportedly gives assent.

The last column summarizes how the opinions we opened describe the track record of each type. It describes those opinions and predicts nothing about any one screen.

In Berman v. Freedom Financial Network, decided 5 April 2022, the Ninth Circuit described clickwrap as a design in which a website presents the terms on a pop-up screen and the customer must check a box explicitly stating I agree in order to proceed. The court said courts have routinely found such agreements enforceable.

The reason is in the action. The click has one meaning, and the screen says what that meaning is. There is no need to infer that the customer noticed a line of small type, because the customer could not continue without responding to it.

Scrollwrap is the stricter form. Keebaugh describes it as the agreement with the strongest notice, because the customer must scroll through all of the terms before the I agree box can be used. Neither opinion says scrolling is required for enforceability.

The leading Ninth Circuit case is Nguyen v. Barnes & Noble, decided 18 August 2014. The terms of use were available through a hyperlink at the bottom of each page. The customer was not told to read them and was not asked to do anything to accept them.

The court held that a conspicuous link on every page, even one close to the buttons a customer must click, is insufficient without more to give constructive notice. It placed the responsibility on the company: the onus must be on website owners to put users on notice of the terms.

Keebaugh later summarized the position in one sentence. Courts have consistently held browsewrap agreements unenforceable because individuals do not have inquiry notice. A browsewrap can still bind a person who is shown to have actually known of the terms, which is a different route and a harder one to prove.

Most consumer sign-up and checkout pages are sign-in wraps. A line near the button says that by signing up, continuing or placing the order, the customer agrees to the terms. The button itself does something else.

In Oberstein v. Live Nation Entertainment, decided 13 February 2023, the Ninth Circuit described these designs as falling between the extremes of clickwrap and browsewrap and said they call for a fact-intensive inquiry. It enforced Ticketmaster's terms, and added a caution that this hybrid form is not without its risks and invites second-guessing.

That caution has been borne out. The court enforced sign-in wraps in Oberstein, in Patrick v. Running Warehouse in February 2024 and in Keebaugh in April 2024. It refused to enforce them in Berman in 2022, in Chabolla v. ClassPass in February 2025 and in Godun v. JustAnswer in April 2025.

Berman states the test in two parts. First, the website provides reasonably conspicuous notice of the terms to which the consumer will be bound. Second, the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests assent to those terms.

The four categories are four ways of meeting, or failing, that test. Clickwrap and scrollwrap supply both parts by construction. Browsewrap supplies neither with any reliability. Sign-in wrap may supply both, depending on type size, color, placement and the match between the notice and the button.

The burden sits with the company. Chabolla repeats the rule that the party seeking to compel arbitration must prove the existence of an agreement by a preponderance of the evidence.

The table lists each published Ninth Circuit opinion we read for this post, with its date and result. All of them concern motions to compel arbitration, which is where these disputes usually surface.

Two unpublished memoranda from November 2026 point the same way as the refusals. On 4 November 2026 a panel affirmed the denial of arbitration for lead forms run by LendingTree and QuoteWizard, citing tiny type and cluttered pages. On 5 November 2026 another panel affirmed a denial where the notice said the customer agreed by clicking below and six clickable items sat below it. Memoranda are not precedent.

Chabolla quotes earlier cases for the point that there is no bright-line test for finding that a particular design element is adequate in every circumstance. The court looks at how the elements appear on the page.

A design can also slide from one category to another. In a ruling of 6 April 2026 from the Middle District of Florida, reported by TCPAWorld, a loyalty sign-up form with a submit button was treated as browsewrap for its text-messaging terms. The form asked the customer to attest to one set of terms and merely linked to a second set, and the arbitration clause was in the second.

The judges themselves disagree about the middle category. Judge Bybee dissented in Chabolla and warned that the majority's approach would create uncertainty for websites. Judge R. Nelson, who wrote the opinion in Godun, added a concurrence saying the court's precedent had created confusion. A company relying on sign-in wrap is relying on an area the court's own members call unsettled.

The list below restates design points that the opinions identify. It describes what those courts looked for. Whether a given screen would be enforced, and under which state's law, is a question for counsel.

The rules also differ somewhat by jurisdiction. The opinions here apply California law, or compare it with New York, Massachusetts and other states and find the rules substantially similar for the question at hand. The lead-form memorandum of 4 November 2026 noted that no party disputed that Washington, Texas and North Carolina law were the same for present purposes.

• Use a checkbox or button whose only meaning is agreement where the term matters most
• Leave the checkbox empty by default
• If the action button does something else, put the notice directly above or below it
• Name the button in the notice, so that the words in the notice match the words on the button
• Make the link to the terms look like a link, in a contrasting color
• Keep the notice at least as readable as the text around it
• Do not rely on a footer link for any term you expect to enforce