Why Terms of Use practices need an ethical revamp
According to one study, 98% of people don’t read T&Cs and would (accidentally) give up their firstborn child just to use an app. But whose fault is it, really?
It should come as no surprise that so many of us have become jaded and exhausted by the same wall of text urging us to adhere to rules and conditions which seem so daunting that choosing “Accept” has become our default response.
The wordy General Conditions in front of us were never even meant to be understood by the average user, and the accompanying jargon has remained rather static since it entered the online sphere.
By current standards, the best we can hope is that we are not signing up for some Faustian pact when all we want to do is carry out a simple task on the newest “it” product. Is that too much to ask?
If you consider how consent is built into websites, software, apps, and anything in between, these only ever serve as an annoying roadblock. Most of them deliberately cause the type of friction that can be remedied with a single mindless click, rather than inviting users to consider the implications.
We are very quick to press any button that will grant us access to the next dopamine hit, and that’s worrying. Yet, we are only human. The real question is whether any of the current practices are ethical and tailored to an era of short attention spans, at all.
Your first-born child in return for using this app. Deal?
In 2018, Jonathan Obar and Anne Oeldorf-Hirsch conducted a simultaneously fun and terrifying study to investigate how far they could go with tricking people into weird agreements. To this end, they developed an app called NameDrop and included some extreme terms for users to agree to.
One clause stated that all user data may be shared with third parties. So far, so generic. But hold my espresso martini — they didn’t mess around. This included sharing data with government agencies, including the NSA and other security agencies abroad.
NameDrop also needed to share user data with third parties to “assess eligibility” in the development of data products. The bonus plot twist?
“This could impact eligibility in the following areas: employment, financial service (bank loans, insurance, etc.), university entrance, international travel, the criminal justice system, etc.”
So much for privacy. Fancy a worldwide scrutiny, possibly impacting your whole life? Thought not; and this is only one of the uh-oh moments with this user data oversharing.
You may think that is very 2022, anyhow. Not to boast, but we probably agree to worse. Fine, I hear you.
How about this clause then?
“2.3.1 Payment types (child assignment clause): In addition to any monetary payment that the user may make to NameDrop, by agreeing to these Terms of Service, and in exchange for service, all users of this site agree to immediately assign their first-born child to NameDrop, Inc. If the user does not yet have children, this agreement will be enforceable until the year 2050. All individuals assigned to NameDrop automatically become the property of NameDrop, Inc. No exceptions.”
Surely, people must have spotted this one at least, right? Well, about that: 98% of participants ignored these “gotcha” instances and simply agreed to the terms and conditions laid out.
Though this is quite an extreme example, it serves to show how easily we can be tricked into waiving our rights.
All I want for Christmas is… an FBI agent?
If you think this was an unusual case, then let me despair you further. ProPrivacy, a digital privacy group, also managed to get away with sneaking in some absurd demands into their T&Cs. According to Sandle, survey respondents agreed to:
“Surrendering the naming rights to their firstborn child,
[Offer] access to the airspace above their property for purposes of drone traffic,
Giving permission to give their mum full access to their browsing history,
The opportunity to use their streaming platforms and litter the suggestions with terrible stand-up specials.”
Another point included was the ability to “invite” a personal FBI agent to Christmas dinner for the next 10 years, which kind of sounds cool to me, depending on the exact terms. (Do I get to cherry-pick my FBI agent? Or does it work more like a draw? Should I picture it as having a very secretive bodyguard at the Christmas table? Can I pitch this to Netflix? I need clarification.)
ProPrivacy found that only 1% of participants in this social experiment read the terms and conditions drawn up. Still, the survey showed that 70% confirmed to have “read the agreement” and 33% claimed to have “read it thoroughly.” Basically, admitting to T&C-skipping was not something people were keen on.
Oops, I did it again
Back in 2017, Deloitte conducted a study to see how many of the 2000 consumers surveyed actually read the Terms of Use before agreeing to the contents. As per their findings, 91% of people did not bother going through the endless legal jargon. Looking at the data of younger people aged between 18–34, the number jumped up to 97%.
Are you surprised? I’m guessing the percentages are looking a bit grim to you, but there is a good chance many can relate to skipping the 17-hour long reading that is the worst bedtime story ever.
If this looks too lengthy to be true, I’ve got bad news for you.
When thinkmoney analysed the word count for General Conditions and Privacy Policies for the most downloaded apps in 2020, they totalled 128,415 words. That is considered the length of an epic novel. And yes, over 17 hours in terms of reading time.
Also, a very good way to put anyone to sleep within 5 minutes or less. Now you know what to read to your kids next. (You’re welcome.)
Terms and cookie consent presented as a nuisance
The average Terms of Use are just not meant for this century. They are neither user-friendly nor understandable, and I’m willing to wager both are mostly intentional. But for fear of making biased assumptions, let’s consider a legal research paper.
In 2019, Uri Benoliel and Shmuel Becher applied well-established readability tests to no less than 500 of the most popular websites in the US to gauge their usability agreement standards. It turned out that the average readability level of these T&Cs was comparable to academic writing, which is typically not aimed at the general public.
To make things even less user-friendly, other practices employed can be adding visual complications such as:
- making the text “excessively long,
- lacking proper sub-headings,
- written in rather small font,
- not easily found,
- or deliberately presented to consumers at a late or uncomfortable time when reading becomes unlikely.”
These can be still used to make things more difficult to understand even if the terms set out are readable and watered down. Delightful, yes?
Typography, appropriate friction, and an ethical approach
Some ways to improve the Terms and Conditions process could be fixed with some good old UX-thinking, a more benevolent mindset and a sprinkle of goodwill.
1) Include a Table of Contents
If you break down and distil the litany of text, you instantly boost the overall experience by helping users navigate and comprehend the content more easily.
This offers a feasible alternative to that knee-jerk reaction of coming across legal gatekeepers with their lengthy rules.
2) Summaries and various formats of TL;DR
Skimming is the new way of reading, so your task is to make text easily scannable. Adding a short summary to each major agreement section aids our minimal attention span and clarifies things faster. All this fosters trust by showing you’ve got nothing to hide.
LinkedIn take this further by presenting their user agreement in quirky video alongside the text. They also provide a table of content and much more, so they check multiple boxes.
3) Translate the jargon
Legal phrases are, once again, not made for your average customer. Fluency in jargon is usually not required in everyday life, so asking users to summon up their inner lawyer is a poor expectation. Offer a layman’s version to your audience to ensure everyone is on the same page.
Shopify state the below for a more balanced approach:
“Everyday language summaries are provided for convenience only and appear in bold near each section, but these summaries are not legally binding. Please read the Terms of Service, including any document referred to in these Terms of Service, for the complete picture of your legal requirements. By using Shopify or any Shopify services, you are agreeing to these terms. Be sure to occasionally check back for updates.”
LinkedIn are even kinder and break down their terms point by point.
If something needs a by-the-way explanation, you can also use quick tooltips so the user has some context to work with that clarifies any lingering confusion.
4) Typography and chunking
Include sub-headings and divide sections into paragraphs to break up blocks of text and help guide the user’s eyes (aiding skimming). If you can divide your terms & conditions into separate categories to filter through, even better.
Also, ensure the font style and size are readable.
5) Include a FAQ
Users might not be ready to dive into your General Conditions even if you make the format more accessible and suitable. By providing a Frequently Asked Questions page for more generic and/or popular questions, you can ease them into both your product’s terms and narrative, whilst offering a sneak peek into your overall tone and approach.
6) Friction can be helpful
One way to put friction to good use is the already common way of making users scroll to the bottom of a wall of text until they can agree to, for example, giving away their firstborn child. This alone will only make them refine their scrolling speed, so perhaps adding a checkpoint after certain sections could be introduced as a forced stop to encourage a brief skimming.
At the very least, include the terms of use via scrolling within the same page, rather than on a separate link. The European Commission confirmed that default exposure to T&Cs leads to 77.9% of users reading at least part of the text, whereas if they have to click to another page, this falls to 9.4%.
7) Signal how long it will take to read General Conditions
Taking further guidance from the European Commission’s 2016 report, “when the opening of T&Cs was optional, stating how much time it takes to read the T&Cs increased the proportion of consumers opening the T&Cs from 9.4% to 19.8%.”
Even Medium provides an estimated reading time to manage expectations and give you an idea of how much investment might be required. You know what to do.
Finally,
ToS;DR might be your next favourite tool. It summarises terms and conditions content, and breaks them down into a simple list of important points. If this feels like a quick fix or a last-minute plaster applied to a festering wound, you may be on point. Whilst tools like this are extremely generous and useful, we shouldn’t have to need them.
As for companies sticking to misleading practices on purpose? Maybe don’t. By refusing to articulate the terms you are setting in an easily understandable way, you are shrouding your business or product in a veil of mystery. And guess what? Clarity and honesty beat mystery. Trust in companies is actually on the rise, so perhaps you would do well not to lag behind due to outdated T&C jargon.
Sidenote:
For the record, I was mostly referring to Terms & Conditions, Terms of Use and General Conditions here, but these also go by other names such as Terms of Service or End-User License Agreement, amongst else.
Thanks for reading! ❤️
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Futher Reading:
- It’s time we fix the unethical design of cookie consent windows by Nicat Manafov
- A dramatic visualisation of Terms & Conditions by Simon Robinson
References & Credits:
- Report finds only 1 percent reads ‘Terms & Conditions’ by Dr. Tim Sandle
- You’re not alone, no one reads terms of service agreements by Caroline Cakebread
- What does your phone know about you? by thinkmoney
- Benoliel, U., & Becher, S. I. (2019). The duty to read the unreadable. BCL Rev., 60, 2255.
- Obar, J. A., & Oeldorf-Hirsch, A. (2020). The biggest lie on the internet: Ignoring the privacy policies and terms of service policies of social networking services. Information, Communication & Society, 23(1), 128–147.
- Consumers’ attitudes to Terms and Conditions (T&Cs) by the European Commission
- Terms of Service; Didn’t Read
- Images by storyset on Freepik
