Keep it simple, stupid.....

A recent study by the BBC discovered that if you put the user terms and conditions of 13 of the top consumer apps such as Zoom and TikTok together, then the combined word count exceeds any of the first three Harry Potter books. This is on the back of a 2018 study that identified that a university degree is required to understand a majority of website terms. Teams won the award for the greatest word count at 18,282 with Google Meet coming in at a measly 4,717.

This sort of research is a "fun" fact for trivia quizzes (our favourite being that it would take over 17 hours to read the 13 sets - something we assume that Stephen Fry would not be interested in reading for Audible) as is the fact that AWS terms (at a mere 22,000+ letters but admittedly aimed at the business customer) still seek to protect itself against "widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organised civilisation". We will probably have more to worry about should they ever need to rely on that clause.... However, despite the trivia, it hides an important issue on the disconnect between businesses seeking to protect and restrict how their sites are used and users who are, more often than not, signing up and accepting terms that they have not read or, even if they have, do not necessarily understand.

One problem with website terms is that they are often only drafted to comply with legislative requirements (think Consumer Contracts (Information, Cancellation and Additional Charges) Regulations) and to protect the business from potential liability if anything goes wrong. They are not seen as helping or reflecting the customer/supplier relationship. Equally, consumers will often see terms and conditions as just another stepping stone that they need to accept in order to buy the goods or services. The reality is that if something goes wrong, they are unlikely to be in a position whereby they can afford to enforce or pursue any breach and a general perception that the terms will be business-centric friendly and non-negotiable and there is little point reading them.

One of the difficulties that businesses face is that in addition to wanting to protect the business, legislation such as the GDPR, distance selling and sale of goods require so much information to be supplied that the terms end up becoming behemoth beasts that lose any form of structural control. It is somewhat ironic that recital 58 of the GDPR demands that information should be "concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used." The reality is undermined by the vast amount of information that you then need to provide. It is and remains a difficult balance.

Despite the contradictory legislative requirements, terms and conditions do not have to be cumbersome and voluminous novels. Businesses can take steps to protect themselves, comply with laws and at the same time assist and help their customers. In particular:

a. "boilerplates" should be relevant and fit for purpose. The constant desire to include reams of clauses (usually at the end of the agreement) relating to third-party rights, notices etc can take up pages whilst having little or no relevance to the service or goods being supplied. If it isn't relevant or serves no practical use, delete;

b. Recognise that we are in the 21st century. It never ceases to amaze how many terms still include details about notice by fax or even telex. Really? - if it does not follow actual business practice requirements - delete;

c. Summaries. Consider using summaries of key terms to help consumers understand and accept what is critical to your business and the transaction. Even if you cannot bring yourself to remove the vast amount of irrelevant or low-risk verbiage - summaries will at least ensure that consumers have a greater understanding of what matters;

d. Business practice v reality. Whilst it is understandable that businesses want to protect themselves, terms will often run contrary to what they promote as their business ethos and approach. Promoting your businesses generous policy to returns as a reason to buy from you but having a set of terms that contradicts this message is counter-intuitive;

e. Legalese: we are all guilty of it and, some of it is necessary. However, where you can be clear and concise - then get rid of the legalese;

f. Smart contracts and modular terms: thankfully - technology is also going to assist for those businesses that are willing to invest. Terms can be built to be relevant to the customer type and requirements rather than trying to fit all scenarios. Using smart contract platforms can ensure that terms match the customer and can, therefore cut out a lot of unnecessary fat. Contracts should be drafted to enable sections to be removed or added as necessary.

Terms and conditions that are short and relevant reduce not increase your risk. Equally, it can facilitate the relationship with your customer by ensuring that they understand the relationship and see that your approach is reflective of your "sales pitch". Protecting the business is vital but having conditions that neither reflect your business practice or are unlikely to be read (or possibly enforceable as a consequence) benefits no one.

So by the time the BBC decides to spend a weekend counting letters again.....let us all see if we can reduce our word count to below that of the average novel.