A three judge panel in the 1st Circuit Court of Appeals found that the arbitration clause in the Uber driver app was not enforceable.
"Because the Plaintiffs were not reasonably notified of the terms of the Agreement, they did not provide their unambiguous assent to those terms. We therefore find that Uber has failed to carry its burden on its motion to compel arbitration."
Uber used gray text on a black background with no clearly adjacent box or button to attempt to obtain user consent. The standard for accepting online terms is a reasonable communication and consent to a conspicuous notice of the terms. While the words of this standard may appear conceptually squishy, the way it is normally implemented is clear.
The gold standard for consent to online agreements is still an unchecked box beside a link to the terms.
Web and application designers have a strong aversion to this gold standard. A constant request is to do away with this standard in favor of something less for "creative reasons," but the cost is too high. We cannot sacrifice the enforceability of online terms on the altar of user interface design.