Pruning the thicket — online terms and conditions ripe for reshaping

Tangled roots, twisted vines, dense foliage — a rainforest, or a good description of online terms and conditions?

Image, Tangled rainforest.

Terms and conditions should not look like this. Image by James Niland / CC BY

The Economist has recently reported on the ‘legal thicket’ of online legal disclaimers in the United States.

If a prize were to be awarded for the world’s clunkiest prose, the paragraphs of indecipherable text that make up ‘terms of use’ agreements would surely win.

In a new twist, the magazine reports that legal disclaimers designed to limit lawsuits are now unleashing litigation.

A surge of lawsuits in America claims that companies’ online agreements violate consumers’ rights. Consumers are banding together in class actions against targets including Apple, Avis, Bed Bath & Beyond, Toys R Us and Facebook.

The latest lawsuits state that some blanket online terms and conditions cut across, and sometimes contradict, an individual state’s consumer protection laws.

The cases have a tinge of the bizarre, citing a law passed before companies even had websites.

Inform consumers clearly and concisely

Online consumers often don’t know whether and when they agreed to a company’s terms and conditions. Some sites ask for explicit agreement before a purchase — some explain their conditions but don’t ask for active agreement. Online terms and conditions are often hard to find and even harder to understand.

In New Zealand the time is ripe for businesses to take a look at their online terms and conditions.

New Zealand’s Commerce Commission says that online sellers must be clear to consumers about their rights and obligations. This is covered in the Fair Trading Act 1986 and Consumer Guarantees Act 1993.

Magnify the fine print

Businesses in New Zealand must write terms and conditions that are clear and easy to find. Traders must not bury important information in fine print or on a link.

The Commerce Commission can apply to the court to have a contract term declared unfair if it doesn’t meet transparency criteria, including being:

Innovative businesses around the world recognise the marketing advantages of a clear-thinking, plain-language style. Their customers are demanding legal information that’s easy to read and the right to understand advice given to them. Courts are backing this up.

Humanise the legalese

Legal terms and conditions demand accuracy and clarity. Applying the principles of plain language helps both buyers and sellers understand their obligations. Writing in plain language means planning, organising, writing, and presenting information to suit the needs of readers.

In the end, terms and conditions must be clear and obvious to consumers — it’s time to tame and trim the thicket.

Learn more about plain language and the law

Our legal writing workshop will teach you how to bring clarity and precision to all legal documents.

Clarity2016 is an international conference about plain language in law, business, and government. It runs in Wellington in November. Clarity2016 has attracted keynote speakers such as the Hon Michael Kirby AC, CMG, Una Jagose, Sarah McCoubrey, and Dr Paul Wood.

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