Proof of Consent: What Courts Have Accepted and Rejected as Evidence of Agreement

The table lists the kind of proof offered and what the court did with it. The Ninth Circuit rows are from opinions we read in full. The two district court rows rest on TCPAWorld reports of the rulings, which we opened; we have not read those two opinions.

Every row concerns a motion to compel arbitration. That is the setting in which proof of online agreement is tested most often, and the same records serve wherever a company has to show what a person agreed to.

Chabolla v. ClassPass states the rule for arbitration: the party seeking to compel arbitration bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. Jackson v. Amazon.com applies the same burden to changed terms. The company had to show that it gave notice of the new terms and that there was mutual assent.

The court reads the record in the other side's favor at this stage. Oberstein v. Live Nation quotes the rule that a district court considering a motion to compel arbitration must give the opposing party the benefit of all reasonable doubts and inferences.

If a real factual dispute remains about whether an agreement was made, the Federal Arbitration Act sends that question to trial. The statute says the court shall proceed summarily to the trial of the issue, and the party resisting arbitration may demand a jury.

The Ninth Circuit has said this three times in similar words. Where the authenticity of screenshots is not subject to factual dispute, courts may decide the issue of constructive notice as a pure question of law. The sentence appears in Oberstein and is quoted in Keebaugh v. Warner Bros. and in Chabolla.

Chabolla shows the kind of foundation that was accepted. ClassPass provided images of its pages, and its marketing director explained that they were in substantially the same form as they would have been presented to the plaintiff on 30 January 2020. The parties were satisfied that the images represented what she saw, and so was the court.

In Oberstein the plaintiffs argued the screenshots were incomplete excerpts and did not capture their experience. The court was not persuaded. There was no dispute that the pages contained the notices, that the notices linked to the terms, and that the terms contained the arbitration provision. Expert and deposition testimony could not change those uncontested features.

Note what the images did and did not do. They let the court see the page. In Chabolla the company still lost, because the court found the page itself deficient. Good evidence of a weak screen proves the weakness.

Godun v. JustAnswer involved several plaintiffs who signed up at different times. The opinion says the design of the site changed over time and, because those changes matter, it reproduces the parties' representations of each page. One plaintiff saw gray-on-gray text. A later plaintiff saw a corrected color. Three others saw a version with a pre-checked box.

The court worked through each version on its own terms. It also recorded a gap: it knew what the landing page looked like for one plaintiff and wrote that it did not know what it looked like for the others.

Keebaugh did the same with two versions of a game's sign-in screen, which the opinion labels by year and dates to a changeover in December 2019. A company with one current screenshot and no history would have had nothing to put in those exhibits.

The date ties three things together: the layout that was live, the version of the terms the link opened, and the action this customer took. Proof that is missing any one of the three leaves a gap the other side can point to.

In Jackson, Amazon filed a declaration saying it had distributed new terms to its delivery drivers by email to the address each driver agreed to keep current. The Ninth Circuit described that as a vague statement that a notice of updated terms was sent.

The district court did not have the email, so it could not evaluate whether the email, assuming it was received at all, gave individualized notice. It had no other evidence such as a description of the email. The court said Amazon may not be required to produce the verbatim content, and that what it did provide was insufficient.

A declaration can also fail by pointing to the wrong thing. In the Red Robin ruling of 6 April 2026, as TCPAWorld reports it, the statement above the submit button linked to loyalty program terms that had no arbitration clause. The clause sat in separate SMS terms. The evidence showed an attestation, to a document that did not help.

Gilliam v. Prince Health is a Middle District of Tennessee ruling of 16 April 2025, reported by TCPAWorld. A company that had bought an insurance lead offered a visual rendering of the web session, supplied by a lead-verification vendor, showing the plaintiff's name and details being entered on the form.

The plaintiff testified at deposition that he had never visited the website and did not fill out the form. As reported, the court found the company had met its initial burden and denied the motion anyway, because the sworn denial was enough to require further proceedings. TCPAWorld's author reads the statute as calling for a trial on formation.

The point generalizes. A form log proves that a submission occurred with certain data. It does not by itself prove which person made it. Evidence that binds the event to the individual, such as a confirmed phone number, an authenticated account or later conduct by that person, addresses a different question from the screen image.

The defendants in Berman did not argue, in their motion to compel arbitration, that the plaintiffs actually knew of the terms. After the district court denied the motion, they sought reconsideration based on deposition testimony taken two months before the ruling.

The Ninth Circuit held the district court acted within its discretion in refusing. With reasonable diligence the testimony could have been presented in connection with the original motion. The district court had described the delay as a tactical decision.

For a business, the timing problem usually starts earlier. The motion is filed months or years after sign-up. If the screen was never captured and the old terms were overwritten, there is nothing to present on time or late.

The federal E-SIGN Act provides that a signature, contract or other record may not be denied legal effect solely because it is in electronic form. Where a law requires a contract or record to be retained, the Act says an electronic record satisfies that if it accurately reflects the information and remains accessible to the people entitled to access it.

For telemarketing calls and texts, the FCC's rule defines prior express written consent as a written agreement bearing the signature of the person called, and says a signature includes an electronic or digital form recognized as valid under federal or state law. The agreement must identify the telephone number and include the required disclosures.

These provisions establish that a click can be a signature and a database row can be a record. They do not lower the burden of showing that this person gave this consent to this wording. That is the part the cases above are about.

The table matches each record to the ruling in which its absence or presence mattered. It is a summary of those rulings and a list of what they imply a company should be able to produce. How long to keep each record, and what privacy law says about keeping it, are separate questions for counsel.