“I have read, understood, and agree with this blog post”

An unimaginative, T&C-drafting hack, yesterdayI did wonder whether to come into work this morning, after I read John Kay’s piece in the FT on why reading T&Cs is a waste of time. Adding to the sense of futility this could engender about my chosen career was Prof Kay’s assertion that the lawyers who draft such documents are “mostly unimaginative hacks rather than hotshots of the profession”. How very dare you!

However, Prof Kay does make some very good points about why “there is nothing ‘irrational'” about ignoring the small print on websites or on the back of dry-cleaning tickets. To say that consumers ought to read all the T&Cs they encounter is to take an excessively “legal and economic” view of human behaviour. In fact:

The reality is that the terms of exchange in a market economy are defined by social expectations and enforced by the mutual need of the parties to go on doing business.

I agree. Another reason why I rarely bother to read the T&Cs on consumer websites, at least where they are based in the EU, is that I tend to assume that consumer protection legislation will step in to protect me from anything too outrageous hidden away in the legal terms. (I’m a little more beadily cautious with US-based sites. But only a little.)

The main reason, though, is that it is not merely rational to ignore the T&Cs, but actively irrational to insist on reading them all. To take just eight of the websites and digital services that I use on a regular basis, here’s a quick, back-of-a-fag-packet word count for their legal terms:

Google

  • Terms: 1814
  • Privacy: 2223
  • Total: 4037

Twitter

  • Terms: 3491
  • Privacy policy: 2235
  • Total: 5726

Tumblr

  • Terms: 5122
  • Privacy policy: 3403
  • Total: 8525

Facebook

  • Terms: 4308
  • Privacy: 2120
  • Cookies: 401
  • Total: 6829

Amazon UK

  • Terms: 5334
  • Privacy: 2834
  • Cookies: 932
  • Total: 9100

LinkedIn

  • Terms: 7558
  • Privacy: 6983
  • Total: 14541

YouTube

  • Terms: 3636
  • Community Guidelines: 722
  • Total: 4358 (NB: YouTube shares Google’s privacy policy)

Apple

  • iTunes Terms: 14274
  • Privacy: 2467
  • Total: 16741

That’s a total of 69,857 words for just eight websites – and that’s ignoring the multiple linked guidelines that sites such as Facebook have in addition to their core legal terms. This is the length of a shortish novel: extend that out to every website you use each day, and you’ll quickly be heading towards a reading challenge of Tolstoyan dimensions.

So why bother having these terms in the first place? Why does my employer have its own terms that are quite long? Why do I not feel a deep sense of personal futility when called upon occasionally to draft terms for websites or online services? Well, to return to Prof Kay’s point quoted earlier:

The reality is that the terms of exchange in a market economy are defined by social expectations

That’s all very well, but every business will know there are customers out there who will, not to put too fine a point on it, take the piss: “You never said we couldn’t do that! It doesn’t say we can’t in your terms!” So well-drafted consumer T&Cs are there, not to override the “social expectations” that are the true heart of the deal, but to embody those expectations and to protect them from abuse – by either party. Conversely, the occasional rows that blow up about a website’s terms usually stem from an attempt by that site to override users’ “social expectations”.

All that said, I believe (and fervently hope) that over time, as we all become more accustomed to life on the internet, and as the social expectations become more clearly understood by both businesses and consumers, the need for lengthy T&Cs will diminish – and we’ll see those word counts start to reduce.

The last word on this, though, should go to Eddie Izzard, who hit the nail on the head when it came to the infamous iTunes Terms and Conditions: see this gifset (the final frame from which adorns the top of this post).

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