On the policy review page there were 15 clauses of changes to the User Agreement, 5 clauses on the Privacy Agreement, and 5 clauses on the Acceptable Use Agreement. These covered several pages and displayed the limpid clarity which characterises all legal documents translated from American via Mandarin into English.
This got me to thinking about all those little boxes we tick covering “terms and conditions”. I might be the only person that fails to study the contractual details that accompany every commercial website but I suspect there might be a few others that display the same rash abandon to contractual detail.
The fact that many contracts are observed in the absence of a precise understanding of their terms is, I think, not a new phenomenon. When you buy a ticket for a railway journey for example you rarely look up the “National Rail Conditions of Carriage”. On the other hand I don’t ever remember being asked to sign up to those terms either. I guess there is an implied acceptance of the terms in the purchase of the ticket.
Somehow however, the rail ticket issue feels different and probably for two reasons. One is that over many years there will have been litigation in relation to the terms that applied to the small piece of paper. This litigation will have articulated the interests of the consumer. Naively, no doubt, I think a compromise position will have been arrived at where the consumers interests have been accepted.
Secondly, of course, there is the whole issue of legislation to strike down unfair terms in contracts which means that if someone does something beyond the pale then it can be struck down later. This might have cost attached to it and delay, but it is a defence for the consumer.
With online purchasing however you are constantly agreeing to terms and conditions by a positive action of agreement. Those terms and conditions may not be unfair but they might be significant if for example they change the privacy settings on some social media product. Because they are so new and also because some of the products are constantly changing there is no opportunity for litigation to build in the interest of the consumer.
It makes one wonder whether there is a qualitative difference in the consumer transaction brought about by the internet which requires a radical development of the, essentially 19th Century, contract form.
One way to do this would be to have all contract forms and amendments reviewed by lawyers with the consumers interest in mind. Clearly they are not negotiating a contract for any single individual, rather they are checking to see that the balance of interests between seller and buyer are fair. Identifying unfair contract terms in advance.
Contracts that have been reviewed in such a way could have a kite mark which would provide consumers with some confidence that the terms were reasonable. Over time bad practice terms would be excluded. A plain English summary of what the contract meant could also be provided for those who wanted to go beyond simply accepting the kite mark. If items were not against the interest of the consumer but were potentially contentious they would be picked out from all the guff that is procedural and non-contentious.
Who should pay for this? The people who want you to sign the contract. Yes it will add to their costs and let us assume that a consumer review will cost as much as the cost of writing the contract. Indeed let us assume it is double the cost. If this is the anything other than an insignificant fraction of the cost of sales then it is probably not worth the bother writing the contract in the first place.
I think there is a similar argument to be made about corporate structures but that is for another day.