It was Umberto Eco, the Italian novelist and philosopher, who said “people are tired of simple things, they want to be challenged”. He was wrong. At least, he was if you listened recently to Parliament.
A recent report from the Science and Technology Committee of the House of Commons stated that “the terms and conditions currently favoured by many organisations are lengthy and filled with jargon. The opaque, literary style of such contracts renders them unsuitable for conveying an organisation’s intent for processing data to users”. In other words, website terms and conditions are too lengthy and complicated for your average user to understand.
But how many people actually read the small print on websites, their iPhones or on apps before downloading them?
I recently had the pleasure of ‘upgrading’ (???) from iOS7 to iOS8 on an Apple device and, I suspect like most people, I simply clicked on ‘yes, I accept the terms’. And when Apple questioned whether I really did accept them, I clicked ‘yes’ again.
Whilst Apple, Google and Twitter are all open to criticism for excessive legalese, it is Facebook’s terms and conditions, running to 20,000 words, that take the crown. Do we really have 1¾ hours to set aside to read them? And even if we did, would we understand them, particularly bearing in mind many of them are written in the US by US lawyers for the US market?
For the sake of editorial balance, BPE’s standard terms of business run to around 3,000 words … but that is the side-effect of having to include in them everything that is required by our industry regulators or more generally by consumer, contract and data protection law.
I’m not suggesting, for one moment, that size is any indicator of importance. After all, Facebook’s rules are four times longer than the entire US Constitution, and twice as long as the entire Human Rights Act, and I’m inclined to believe the latter documents are, on balance, rather more fundamental than the former.
What has Facebook got to say that takes up so much of the internet? I have to say that I admire their optimism – “if we disable your account, you will not create another one without our permission”. How many of those 20,000 words really need saying? And why create such a lengthy set of terms that they know nobody is going to read?
At one time, Google’s Gmail terms said that they owned the content of your emails, and Instagram’s terms said that they could publish and sell on any photographs you uploaded onto the service. I bet most users weren’t aware of these nuggets hidden away deep in the respective terms and conditions.
To be fair, Facebook are doing something about it, having recently updated their terms under the heading “Everything you need to know, all in one place”, but that’s a relatively small step forward. The Committee’s proposal is that the Information Commissioner’s Office creates a suite of “information standards” that IT companies would be expected to sign up to, with simplification being at the top of the agenda.
Parliament is confident that it will work, and make terms and conditions easier to read (and therefore, more likely that we will actually read them) – it will be interesting to see, if the proposal does go forward, how keen the likes of Apple, Google, Twitter and Facebook are to adapting their respective businesses to appease the UK Government.
What can you do?
Before it closed last year, the Office of Fair Trading often held companies to task for terms and conditions written in illegible legalese. Fighting on behalf of the consumer, it took the view that any terms not written in plain English would be unenforceable, much to the chagrin of companies who had paid their lawyers money to write protective terms, only to find out they were unenforceable due to the language used. Specialist consumer lawyers will be used to writing in everyday English, whereas those trained in other areas of law may find the skill more difficult.
On the other side of the fence, the Committee’s report should serve as a timely reminder for businesses to review their consumer-facing terms and conditions. What was considered ‘plain English’ and enforceable a few years ago may not be enforceable today – the law protecting consumers is moving quickly, and it is important to keep up with developments.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.