Have You Clicked “Agree” and Just Given Away Your First Born?

The biggest lie we tell almost daily is “I have read and understood.” Users who click “I agree” in order to access websites and apps are participating in a collective reflex because how can we agree to Terms and Conditions (T&C) that we cannot understand and, therefore, we do not read?

The density, opaqueness, and length of almost all such documents make us cringe. Even if we did read them, we’d be giving away months of our lives. According to a study by researchers at Carnegie Mellon, reading just the privacy policies we encounter in a year would take the average person 76 business days.  

The amount of time we would have to spend reading is a function of two factors: length and density. Of the top 75 websites, the average length of their privacy policies was 2,514 words and all were filled with jargon, long sentences, and a lack of clarity in general.

In addition, because we cannot use the website or app unless we click “I Agree,” we are all involved in a kind of “extortion.” We are forced, in a sense, to agree to that which is too complicated to read.  

May 22 at Technical Documentation RoundUp: Deborah Bosley presents "What is Plain Language and Why Should You Care?" 

What are Terms and Conditions?

Terms and Conditions (T&C) or Terms of Service or Terms of Use are agreements that explain the rules, requirements, and standards for using a website or an app. Unlike a Privacy Policy (or a myriad of other disclosures regulated by 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 required to have T&C, but most do. In addition, they are not bound by regulations that require them to write these agreements to be “clear and conspicuous.”

Users are actually agreeing to a myriad of restrictions, conditions, and requirements without having any knowledge of what they are agreeing to.  A “prank” study with 543 university students asked them to decide if they wanted to sign up for a new social network (the network was fake, but the students didn’t know). The T&C included a section that required them to give up their first born by 2050. Most clicked “Agree” without reading. They almost all agreed because they did not read the T&C and the very few who did, clicked “I agree” anyway. In a real study by the online gaming store, Game Station (though done on April Fool’s Day) included the following paragraph 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 gave up their souls. Why were these two “experiments” so “successful?” Because T&Cs are written in a manner that makes it almost impossible for the average person to understand them and if we tried to read them, many would take us weeks because they are too long, too confusing, and clearly not written with the average user in mind: They are not written in to be “clear and conspicuous” (plain language).

What Does “Clear and Conspicuous” Mean, Anyway?

Technical writers or content creators need to understand what “clear and conspicuous” means (plain language) and how to write in a manner that meets regulatory requirements. According to the Federal Trade Commission, a disclosure that meets “clear and conspicuous” standards must be (among other elements) truthful, easily seen, and written in language that consumers understand. Your job as writers, then, would be (in the ideal world) to be sure you use plain language best practices and “translate” existing (or create new) T&Cs into plain language. 

What Other Disclosures are Required to be Written in Plain Language?

The recent General Data Protection Regulation (GDPR), which requires that all privacy policies be written in plain language affects any company doing business with the EU (and Britain post-Brexit).  As stated in the regulation: “This rule is intended to keep companies from using excessive legalese in order to confuse users and hide their true intentions.” Both the GDPR and the recent focus on Facebook and other companies that have had data breaches are now being forced to write privacy policies in plain language. However, a dozen or so US regulations require plain language in many other types of disclosures, including:

·      Credit Card Agreements (Consumer Financial Protection Bureau: CFPB)

·      Summary Plan Descriptions (Employee Retirement Income Security Act: ERISA)

·      Health Privacy Policies (Health Insurance Portability and Accountability Act: HIPAA)

·      Real Estate Collateral Contracts: (Truth-in-Lending Act: TILA and the Real Estate Settlement Procedures Act: RESPA) 

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

And yet, it is rare that any legal action is brought against these documents. For example, credit card agreements are “…still mind-numbingly obtuse,” said Joe Ridout, consumer services manager at Consumer Action in San Francisco, which monitors credit card industry practices. 

According to a scientific telephone poll of 1,000 Americans, when asked to describe their card agreement in one word, people most frequently said “wordy,” “confusing” or “complex,” and also mentioned “painful.” 

Obviously, we should read everything we agree to or sign. However, currently, all the obligation is placed on users. The question is whether corporations, government agencies, and other organizations should be obligated to create readable documents. According to a recent study by two law professors who analyzed 500 of the most popular websites in the U.S. and their Terms and Conditions, “while consumers are legally presumed to read these contracts, websites are not obliged to provide consumers with readable ones.” That is, people are held accountable to contracts that they literally cannot understand even if they took the time to read them. 

Who Benefits and How?

It’s obvious how users benefit from clear T&C (even if we agree to give up our first born, at least we know we’re doing it), but perhaps the better argument is how companies benefit from clarity? Money, time, customer experience, and brand integrity.   

In a recent study published in The Atlantic, Alexis Madrigal breaks down the numbers:

“So, each and every Internet user, were they to read every privacy policy on every website they visit would spend 25 days out of the year just reading privacy policies! If it were your job to read privacy policies for 8 hours per day, it would take you 76 work days to complete the task. Nationalized, that’s 53.8 BILLION HOURS of time required to read privacy policies.”

The researchers came up with an estimated national cost for all of those lost work hours: $781 billion. That is, the company that employs workers will waste valuable work time trying to read T&Cs (assuming accurately that they are as difficult to understand as privacy policies). 

But in the new-ish world of GDPR, Privacy Policies under scrutiny (think Facebook), and the collective number of disclosures that are required to be written in plain language, I predict these T&Cs are next up for scrutiny. Imagine the wreck of a company’s brand was it to get in trouble for their T&Cs being impossible to understand. 

So, as users, before you click “I agree,” send an email to the website or app company and demand that the T&C be written in plain language. And as technical writers, we are in a unique position to make those arguments. Unless we do that, most of America could lose their first born. 

Learn more: May 22 at Technical Documentation RoundUp: Deborah Bosley presents a half-day educational workshop,"Creating Plain Language Content."