Use Simplified Language in Terms and Conditions Docs

One of the most common falsehoods we utter almost daily is the phrase, "I have read and understood."

Users who click "I agree" to gain access to websites and apps are often partaking in a collective reflex.

How can we be expected to agree to terms and conditions (T&C) that are often unintelligible and, as a result, remain unread?

The sheer density, opacity, and length of most of these documents can be overwhelming.

Even if we attempted to read them, we'd be surrendering months of our lives.

According to research from Carnegie Mellon, reading the privacy policies encountered in a year would consume an average person's 76 business days.

The time we would have to dedicate to reading is influenced by two factors: the length of these documents and their complexity.

Among the top 75 websites, the average length of their privacy policies stands at 2,514 words, all filled with jargon, lengthy sentences, and a general lack of clarity.

Moreover, the fact that we cannot utilize a website or app without clicking "I Agree" forces us into a kind of "coercion." We are compelled to accept terms and conditions that are too convoluted to comprehend fully.

WHAT ARE TERMS AND CONDITIONS?

Terms and conditions (sometimes referred to as terms of service or terms of use) are agreements that delineate the rules, requirements, and standards governing the use of a website or app.

Unlike privacy policies (or a multitude of other disclosures regulated by entities such as the US Securities and Exchange Commission, the US Dodd–Frank Wall Street Reform and Consumer Protection Act, and the US Employee Retirement Income Security Act of 1974), companies are not mandated to have T&C, although most do.

Furthermore, they are not bound by regulations necessitating that these agreements be "clear and conspicuous."

In reality, users are agreeing to a plethora of restrictions, conditions, and stipulations without comprehending the full extent of what they are assenting to.

A whimsical study once asked students to relinquish their first-born child to gain access to a fictitious social media network.

In this "prank" study involving 543 university students, they were asked to decide whether to sign up for a new social network (unbeknownst to them, the network was not real). The T&C included a clause that required them to surrender their first-born child.

A majority of students in the study simply clicked "Agree" without perusing the agreement. Among the few who did read the text, most still ended up clicking "I agree."

In a real-life incident a few years ago on April Fool's Day, the online gaming store Game Station included the following passage in their T&C:

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non-transferable option to claim, for now and forever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorized minions."

More than 7,500 people willingly forfeited their souls.

Why did these two "experiments" yield such "success"?

Because T&Cs are composed in a manner that renders them almost inscrutable to the average person.

If we attempted to read them, many would take weeks because they are excessively long, excessively complex, and clearly not crafted with the average user in mind – they lack the quality of being "clear and conspicuous" (plain language).

WHAT DOES "CLEAR AND CONSPICUOUS" MEAN?

Technical writers or content creators must grasp the concept of "clear and conspicuous" (plain language) and understand how to compose documents that meet regulatory standards.

As defined by the Federal Trade Commission, a disclosure considered "clear and conspicuous" must, among other criteria, be truthful, easily noticeable, and written in a language comprehensible to consumers.

In an ideal scenario, your role as a writer would be to employ best practices in plain language and either translate existing T&C or create new ones in plain language.

WHAT OTHER DISCLOSURES MUST BE WRITTEN IN PLAIN LANGUAGE?

The enactment of the General Data Protection Regulation (GDPR), which mandates that all privacy policies be composed in plain language, affects any company conducting business with the EU (including Britain post-Brexit).

According to the regulation:

"This rule is intended to keep companies from using excessive legalese to confuse users and obscure their true intentions." Both the GDPR and recent scrutiny of companies like Facebook and others with data breaches have compelled them to draft privacy policies in plain language.

Furthermore, approximately a dozen US regulations require plain language in various other disclosure types, including:

• Credit Cards (Consumer Financial Protection Bureau)
• Summary Plans (Employee Retirement Income Security Act)
• Health Privacy (Health Insurance Portability and Accountability Act)
• Real Estate (Truth-in-Lending Act and Real Estate Settlement Procedures Act)

In addition to private entities, the US Plain Writing Act of 2010 mandates that federal agencies use plain language for all descriptions of services and benefits.

Surprisingly, very few legal actions are taken against these documents, despite widespread complaints about their complexity. For instance, credit card agreements are still often considered "mind-numbingly obtuse," according to Joe Ridout, consumer services manager at Consumer Action in San Francisco, an organization that monitors credit card industry practices.

A scientific telephone poll of 1,000 Americans revealed that when asked to describe their card agreements in one word, respondents most commonly used terms like "wordy," "confusing," "complex," and even "painful."

While it is important to read everything we agree to or sign, the current onus is predominantly on users. The question arises as to whether corporations, government agencies, and other organizations should be legally obligated to produce understandable documents.

A  study by two law professors who analyzed the Terms and Conditions of the 500 most popular U.S. websites revealed that "while consumers are legally presumed to read these contracts, websites are not obligated to provide consumers with readable ones." Essentially, people are held accountable to contracts that are virtually incomprehensible, even if they attempt to read them.

WHO STANDS TO BENEFIT AND HOW?

The advantages of clear T&C for users are evident (at least we would know what we're agreeing to, even if it involves giving up our first-born child), but the stronger argument lies in how companies benefit from clarity – financially, temporally, in terms of customer experience, and brand integrity.

In a study published in The Atlantic (linked above), Alexis Madrigal crunched the numbers:

"So, each and every Internet user, were they to read every privacy policy on every website they visit, would spend 25 days of the year solely on reading privacy policies! If one's job were to read privacy policies for 8 hours a day, it would take 76 workdays to complete the task. Nationally, that adds up to 53.8 BILLION HOURS of time required to read privacy policies."

The researchers estimated the national cost of all these lost work hours at $781 billion. This means that companies employing workers would lose valuable work hours simply due to the need to read T&C (assuming these are as challenging to understand as privacy policies).

In the relatively new landscape of GDPR, heightened scrutiny of Privacy Policies (think Facebook/Meta), and the growing number of disclosures that must be written in plain language, it is plausible that T&C could be the next target for scrutiny. Imagine the damage to a company's reputation if their T&C were found to be incomprehensible.

Don't Trick People - Be Plain 

Therefore, as users, before clicking "I agree," consider sending an email to the website or app company and request that their T&C be composed in plain language. As technical writers, we possess a unique position to advocate for this cause. Without such advocacy, countless individuals may unwittingly relinquish more than they bargained for."