Nobody, and the companies that write them know it.
Last week I tried an experiment. I installed a new app on my phone – a perfectly ordinary one, for booking tables at restaurants – and before tapping “I agree”, I read every word of the terms and conditions and the privacy policy that came with it. It took me an hour and seven minutes. The two documents ran to a little over 14,000 words, longer than the short stories I read on the bus.
I learned that the company could share my location with “selected partners”, that it could change the terms at any time by posting a notice on its website, and that any dispute would have to be settled by private arbitration in a city I have never visited. I also learned that I am almost certainly the only person in Calder who has read them.
Consent that nobody gives
We all know this. Studies of online behaviour have consistently found that the overwhelming majority of people click through terms of service without reading a single line, and that those who do open them spend a few seconds scrolling to the bottom. One much-quoted experiment found that almost every participant agreed to terms that included giving up their first-born child, because the clause was buried in paragraph nine.
My argument is simple: a system of consent that everyone knows is fictional is not a system of consent at all. It is a way of shifting legal risk from companies that can afford lawyers onto individuals who cannot afford the time. And the companies that write these documents know perfectly well that no one reads them – that is precisely why they can be so long.
“We advise clients that the longer and more complete the terms, the safer they are in court. Nobody in the room pretends the customer is going to read them,” a contracts lawyer at a Calder firm told me, on condition that I did not name him or his clients.
That candour is useful. It confirms that the documents are written for judges, not for people. They are designed to be legally complete rather than understood, and they succeed on those terms. The trouble is that we then treat the click on “I agree” as though it carried the moral weight of an informed choice.
The case for leaving it alone
The opposing view deserves a fair hearing. Contracts have always been long and dull, the argument goes. Nobody reads the full terms of their mortgage or their home insurance either, and the law protects us anyway: unfair clauses can be struck out by the courts, and consumer protection rules already cover the most egregious abuses. Simplify the terms too much, and you leave gaps that will be argued over later at greater cost.
There is something in that. Not every clause matters, and courts do sometimes refuse to enforce the worst ones. But that safeguard only works for people who go to court, which is almost nobody. And the comparison with mortgages cuts the other way: when we buy a house, regulators insist that the key terms are set out in a short, standard summary we are required to receive. There is no reason the same principle could not apply to an app that tracks where we eat.
What should change
I would like to see three things. First, a short, plain summary at the top of every set of terms – one page at most – setting out what data is collected, who it is shared with and how to leave. Second, a rule that any material change to the terms must be accepted again, rather than imposed by a notice on a website no one visits. Third, standard formats, so that a person comparing two services can see the differences without hiring a solicitor.
The Assembly’s consumer affairs committee has said it will look at digital contracts in the new term. It should not settle for another consultation that produces another set of guidelines companies can ignore. It should require summaries, in plain language, enforced with real penalties.
Until then, I don’t expect anyone to follow my example. An hour and seven minutes is a lot to ask for a restaurant booking, and I am not sure I am better off for knowing what I agreed to. That is the point. When reading the rules makes no difference to the outcome, the rules are not really there for us.
