Consent Language Placement on Websites: Court Lessons for TCPA & Terms of Use Compliance

You've spent time and money optimizing your site. Click-through rates have been analyzed to death. But your legal team is insisting on adding additional consent language. So your design team does its best to make the language as unobtrusive as possible. However, your design team increased your risk without anyone understanding why.

A recent federal court decision demonstrates that even clear language isn't enough—how you present your Terms of Use can determine whether your arbitration agreements, liability waivers, and other contractual protections are legally enforceable. The same principles apply to TCPA consent language on lead generation forms.

In Ferrell v. SnapCommerce Holdings, Inc., the U.S. District Court for the Northern District of California denied a company's motion to compel arbitration because their Terms of Use hyperlink wasn't conspicuous enough, despite containing the explicit phrase "By clicking 'Send code' you agree to our Super.com Terms of Use."

The problem? The hyperlink was displayed in small, gray, underlined text without additional visual distinction. This case provides essential guidance for any company collecting user information, offering services, or seeking to enforce arbitration agreements through their website or mobile app—and the lessons extend directly to consent language placement for TCPA compliance.

The Legal Standard: Reasonably Conspicuous Notice

Courts apply a two-part test to determine whether users are bound by online terms:

First, did the website provide reasonably conspicuous notice of the terms? The notice must be "displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it." This is an objective standard—what a reasonable person would notice, not what they actually read.

Second, did the user manifest assent to those terms? This typically requires clicking a button, checking a box, or taking some affirmative action after being presented with notice.

If either element fails, the contract fails. In the SnapCommerce case, the court never reached the second question because the company couldn't satisfy the first requirement.

What Doesn't Work: The SnapCommerce Approach

SnapCommerce's signup page required new users to enter a phone number. At the bottom of the page appeared this notice in small gray font on a white background: "By clicking 'Send code' you agree to our Super.com Terms of Use." The phrase "Super.com Terms of Use" was underlined and hyperlinked.

The court found this insufficient for several reasons. The font was smaller than any other text on the page, making it easy to overlook. The hyperlink used only underlining without any contrasting color, bolding, or capitalization. The gray-on-white color scheme provided minimal visual distinction. And the design relied solely on one visual cue (underlining) rather than multiple elements that would make the hyperlink readily apparent.

As the court explained, "a web designer must do more than simply underscore the hyperlinked text" to ensure users actually notice it exists. Consumers cannot be expected to "ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound."

The Ninth Circuit's Clear Requirements

The controlling precedent in the Ninth Circuit (which covers California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, and Hawaii) comes from Berman v. Freedom Financial Network. This 2022 decision established that hyperlinks must be visually distinctive through multiple design elements, not just underlining.

The Ninth Circuit has repeatedly emphasized that users shouldn't have to hunt for terms. In Nguyen v. Barnes & Noble, the court held that simply providing a hyperlink somewhere on the page isn't enough—it must be designed so users will actually notice it.

What Does Work: Design Elements That Courts Approve

Courts have upheld Terms of Use notices that incorporate multiple visual distinctions. Blue or contrasting color for hyperlinked text meets the standard color users expect for clickable links. Bold typeface draws attention to the hyperlink. Capitalization of key terms like "Terms of Service" or "Privacy Policy" signals importance. Font size comparable to or larger than surrounding text ensures visibility. Strategic placement near or above the action button users must click creates proximity. And clear, direct language like "By clicking [button], you agree to the Terms of Service" removes ambiguity.

Recent cases that found adequate notice featured combinations of these elements. In Sarhadi v. Pear Health Labs, the court approved a design where "Terms of Service" was not only underlined but also capitalized and colored blue. In Kroskey v. Elevate Labs, bold hyperlinks with capitalized first letters in the context of a paid subscription were deemed sufficient.

The key principle: multiple visual cues working together to make the hyperlink readily apparent.

Consent Language Placement Checklist

Companies should review their website and app signup flows using this checklist:

Hyperlink color: Are Terms of Use hyperlinks displayed in blue or another contrasting color that stands out from surrounding text? Standard practice uses blue (#0000FF or similar) because users have been conditioned to recognize this as clickable.

Font formatting: Is the hyperlink bolded, capitalized, or otherwise emphasized beyond mere underlining? Underlining alone is insufficient under current precedent.

Font size: Is the notice text comparable in size to other important elements on the page? Text that's "just slightly smaller" than surrounding content may fail the conspicuousness test.

Proximity to action: Is the notice positioned directly adjacent to the button or field where users take action? Proper consent language placement means the further away the notice, the less likely users will see it.

Language clarity: Does the notice explicitly state that clicking the button or using the service constitutes agreement to the terms? Phrases like "By clicking 'Continue,' you agree to our Terms of Service" provide clear notice of the binding nature.

Multiple references: For lengthy signup flows, do you reference the Terms of Use at multiple points, especially before final submission?

Visual testing: When you view the page as a first-time user, is the hyperlink immediately obvious, or do you have to look for it?

Website Compliance: Why Placement Matters for TCPA Consent Language

While the SnapCommerce case focused on enforcing an arbitration agreement, the same principles apply to all contractual terms presented online—and they apply with particular force to TCPA consent language.

Liability limitations and disclaimers won't protect you if users weren't properly notified. Privacy policies and data use authorizations may be unenforceable if not conspicuously presented. Subscription terms, auto-renewal provisions, and cancellation policies need proper notice.

But the stakes are particularly high for TCPA compliance. Companies collecting phone numbers must ensure users knowingly consent to receiving communications. The FCC's requirements for prior express written consent demand that consumers receive clear and conspicuous disclosure before agreeing to receive marketing calls or texts.

If your TCPA consent language is buried in small gray text at the bottom of a lead form—the exact design flaw in SnapCommerce—you cannot rely on that consent when class action plaintiffs come calling. The "reasonably conspicuous" standard that sank SnapCommerce's arbitration clause will sink your TCPA defense just as quickly.

Proper TCPA consent language placement requires positioning the disclosure directly adjacent to the phone number field and action button. It requires clear visual distinction through contrasting colors, appropriate font size, and multiple design cues. And it requires language that meets FCC requirements: identifying who will contact the consumer, disclosing the use of automated technology or prerecorded messages, and stating that consent is not a condition of purchase.

As the SnapCommerce case demonstrates, inadequate notice of terms means you can't rely on arbitration clauses to avoid class action litigation when TCPA violations are alleged. The combination of improper consent language placement and potential TCPA exposure creates a litigation risk that can quickly reach seven or eight figures.

The "Complete Control" Principle

Courts consistently emphasize that companies have "complete control over the design" of their websites and apps. This means companies bear the full risk if they choose minimalist designs that courts later find inadequate.

As the California Court of Appeal noted in Sellers v. JustAnswer, "even text that is just slightly smaller, or slightly further away from the box or button the consumer must click on must, at some point, exceed the limits of what constitutes adequate notice." When companies choose inconspicuous presentation, they "run the risk of a court concluding" the notice is insufficient.

This is a business decision with legal consequences. Saving screen space or maintaining aesthetic minimalism by using small, gray, barely-noticeable hyperlinks may seem appealing from a design perspective, but it can invalidate your entire contractual framework—including the TCPA consent language you're depending on to defend against litigation.

Special Considerations for Mobile Apps

Mobile apps present additional challenges because screen real estate is limited and users scroll quickly. Courts apply the same "reasonably conspicuous" standard but recognize the constraints of mobile design.

Best practices for mobile apps include using standard blue hyperlinks that mobile users expect to see, positioning terms notice prominently BEFORE the final "Sign Up" or "Create Account" button, avoiding reliance on text that appears only after scrolling, using larger font sizes that are readable on small screens, and testing on multiple device sizes to ensure visibility.

Too often, the terms notice or TCPA consent language is never seen on mobile because it's positioned below the action button. Users tap the button without ever scrolling to see or even having notice of what they're agreeing to.

The mobile context doesn't lower the bar for conspicuousness—if anything, it requires extra attention to ensure users actually notice terms on smaller screens. For a significant percentage of websites, mobile traffic represents the majority of visitors, making mobile-first consent language placement essential for website compliance.

Updating Existing Websites and Apps

If your current signup flow resembles the SnapCommerce approach—underlined hyperlinks in small or gray text without additional visual distinction—you should prioritize updates.

Immediate fixes: Change hyperlink color to blue, bold the hyperlink text, and increase font size to match surrounding content.

Structural improvements: Move terms notice and TCPA consent language closer to action buttons, add checkbox requirements for express consent (especially for TCPA-related communications), and implement "browsewrap" protections by displaying terms prominently in website footers.

Documentation: Preserve screenshots of your updated design to demonstrate compliance if later challenged, maintain version history of Terms of Use to show when changes were implemented, and document the design decision-making process.

Beyond Compliance: Building User Trust

While the legal analysis focuses on enforceability, there's a broader principle at stake: transparent disclosure builds user trust. Users who clearly understand what they're agreeing to are less likely to feel deceived and more likely to remain customers.

Making your Terms of Use and TCPA consent language conspicuous isn't just about winning arbitration motions or defending against TCPA class actions—it's about establishing an honest relationship with users from the first interaction. When users can easily find and understand your terms, you create a foundation of trust that benefits long-term customer relationships.

Conclusion

The lesson from Ferrell v. SnapCommerce is clear: conspicuousness matters as much as content. You can draft the most sophisticated Terms of Use with iron-clad arbitration provisions, or craft TCPA consent language that checks every FCC requirement—but if users don't notice the disclosure, courts won't enforce the agreement.

The requirements aren't burdensome. Use blue hyperlinks. Bold the text. Make the font readable. Position consent language placement near action buttons and phone number fields. These simple design choices can mean the difference between enforceable contracts and expensive litigation without the protection of arbitration.

Courts have repeatedly emphasized that companies control their own website design and bear the consequences of inadequate notice. In an era of increasing class action litigation—particularly under statutes like the TCPA that provide statutory damages of $500 to $1,500 per violation—ensuring your Terms of Use and TCPA consent language are properly presented isn't optional; it's essential risk management.

Review your website and app designs today. If users have to hunt for your Terms of Use or TCPA consent language, you're running a risk that recent court decisions make clear is entirely avoidable. Website compliance starts with proper consent language placement—terms that are easy to find, easy to understand, and easy to agree to fit the two basic rules of compliance: tell the customer what you are going to do, and then do that.

Frequently Asked Questions

Where should consent language be placed on a website?

Consent language should be placed directly adjacent to or above the action button (such as "Submit" or "Sign Up") and near the field where users enter the relevant information—for TCPA consent, that means near the phone number field. The text must be visible without scrolling past the action button, use contrasting colors, and be comparable in size to other important text on the page.

What makes Terms of Use conspicuous enough to be enforceable?

Courts require multiple visual cues working together: contrasting color (typically blue for hyperlinks), bold or capitalized text, font size comparable to surrounding content, and strategic placement near action buttons. A single visual element like underlining alone is insufficient under Ninth Circuit precedent.

Does TCPA consent require specific placement on forms?

Yes. The FCC requires that TCPA consent language be "clear and conspicuous." “Clear and conspicuous” generally means “hard to miss”. Courts apply the same standards they use for Terms of Use: the disclosure must be positioned where a reasonable user would see it before taking action, use visual elements that draw attention, and clearly communicate what the user is agreeing to. Burying TCPA consent language in small text below action buttons can invalidate your consent defense.

What are the consequences of improper consent language placement?

If consent language isn't conspicuously displayed, courts may find that users never agreed to your terms. This can invalidate arbitration clauses (forcing you to litigate in court rather than arbitration), eliminate liability limitations, and—for TCPA violations—expose you to class action lawsuits with statutory damages of $500 to $1,500 per call or text.