Website terms and conditions are surprisingly complex

Website terms and conditions are pretty tough to do properly. They are on just about every website you come across on the Web and are so prevalent that it is easy to take them for granted and also assume that they are all pretty much the same. Often how a website terms and conditions (I'll refer to them as "website terms" for the rest of this post) is drafted is a matter of personal style but a lot of thought and planning goes into a well drafted website terms.

Lawyers have different approaches to website terms. Some will look for seemingly complete website terms on the Web or in precedent libraries, change the names and details and push it out to their clients. Other lawyers will spend more time on a website terms and prepare a set of website terms that are at least prepared with the client's business in mind. Yet another group of lawyers will take a more involved approach which may include:

• taking more detailed instructions from the client about the client's business and what the website is intended to do;
• carefully consider the risks that could arise;
• carefully consider the various pieces of legislation and third party terms and conditions the website terms will have to comply with or take into account; and
• prepare website terms which establish a sound legal framework for the website and its proposed activities.

Leaving aside website terms' content, the way website terms are presented is also fairly important. Paper-based legal documents are frequently formatted using multi-level paragraph numbering because those paragraph numbers are the most convenient referencing system on paper. Clauses often refer to each other and lawyers need a convenient way to refer to parts of the document. Its just easier to refer to "clause 3.4.2" than it is to refer to "the clause that sets out the exception to the duration clause".

When it comes to website terms and conditions, the multi-level numbering convention still works (although it is probably a pain for developers to convert these documents into a website friendly format) but the result is often a fairly intimidating block of text. Three good examples of this sort of website terms are the Zappon, Times Live and Facebook website terms:

Zappon:


Times Live:


Facebook:

Another approach to website terms is to dispense with multi-level paragraph numbering. An example of this approach is the Foursquare website terms:

Both of these approaches have merit. A couple formatting issues affect readability (usability experts can probably cite a dozen more): the effect of multi-level numbering on the document's apparent density, line spacing and the font used. In the Zappon website terms the multi-level numbering and line spacing make the text look pretty dense and not terribly enticing. On the other hand, the Times Live website terms (very possibly prepared by the same legal team) also uses multi-level numbering and is better spaced. The Times Live website terms are far easier to read than the Zappon website terms. The Facebook terms sit in between the Times Live and Zappon website terms.

On the other hand, the Foursquare terms dispense with multi-level numbering in favour of a simpler document structure (I tend to prefer this approach myself). The challenge with this approach is the loss of an easy paragraph referencing system with multi-level numbering presents. The solution is to use hyperlinks instead, the Web's referencing system. Although the basic layout makes the Foursquare website terms easier to read, the font detracts from that. The Zappon terms have a similar issue. This may be a personal preference but I find non-serif fonts to be much more readable that serif fonts when it comes to website terms. The Facebook and Times Live website terms use non-serif fonts. I have spent a little time reading about fonts in legal documents and while I just barely scratched the surface, it is a pretty interesting topic.

So why all the talk about readability? Website terms are contracts between website visitors and the website proprietor. Just as the Consumer Protection Act requires that contracts be drafted in plain language to make them more accessible and intelligible, formatting website terms to make them more readable achieves a similar objective. Website terms, when they deal with all the legal issues they need to deal with, are lengthy documents but they are important documents. If a visitor is immediately put off by the website terms' formatting, the visitor will be that much less inclined to read the document which will contain terms he or should really should read. The end result is that the website terms will not do what they are supposed to do.

This discussion may seem pretty abstract but it becomes pretty important in the context of consumer protection imperatives like the plain language requirement. It is also important from a contractual perspective. A contract should be clear and readable if it is to adequately support the agreement between the parties to it. Everyone should understand their rights and obligations and a dense body of text with numbered paragraphs renders the document virtually inaccessible.

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Image credit: Manuscript by Muffet, licensed CC BY 2.0

Legal compliance through Online Reputation Management

Online Reputation Management (commonly referred to as "ORM") solutions are popular with companies that have social media initiatives. These solutions enable companies to monitor the social media landscape for keyword and brand mentions that they often select based on their areas of interest. Two local solutions are BrandsEye and saidWot (Disclosure: saidWot's sister company, Virtuosa, has been a client).

I came across an American solution that has an interesting approach. Hearsay Social appears to combine ORM with US financial services industry compliance solutions to provide a more holistic approach to the social Web. I have no experience with the product but their introductory video explains their approach nicely:

ORM solutions tend to do a good job monitoring the social Web for specified mentions. The emphasis has tended to be the marketing benefits this sort of monitoring brings to the table but there is another, perhaps more important, function these services could (and, to an extent, perhaps already do) perform: legal compliance. Legal compliance requirements vary from industry to industry and are fairly well addressed in conventional contexts. Financial institutions, for example, carefully monitor what their employees say in mainstream press and restrict communications about their financials over certain times of their financial year.

While some of these businesses are taking a greater interest in relevant mentions on the social Web, its not clear how many businesses regard ORM as a compliance tool in addition to a marketing tool. Well, the nature of ORM services does speak to a compliance aspect in that they often conduct some form of reputation scoring but, as I understand these solutions, the purpose of that scoring is more for marketing purposes to facilitate improved engagement and help shape marketing strategy than it is to ensure better compliance with the myriad legislative and regulatory compliance requirements.

The challenge with the social Web is that communications on the social Web exist outside corporate networks and are subject to third party control, variable user privacy settings and are distributed across a range of services (although probably concentrated on a few large ones like Facebook, Twitter, LinkedIn and, to a degree, Quora). Many businesses have implemented systems that help them monitor employee communications using email, instant messaging and perhaps even internal social media implementations but few seem to be tackling the social Web and what employees and customers say on the social Web from a legal compliance perspective.

A compliance-oriented approach to ORM could extend social media policies meaningfully and help companies track and store detailed reports setting out the extent and scope of resulting interactions. Such a solution will need to cater not just for specific legislative and regulatory requirements but also for businesses' own compliance programs (for example, programs to ensure Consumer Protection Act compliance through best practices). Records compiled by these solutions would also need to be detailed enough to fulfill an evidentiary role should interactions prove to be contentious down the line and be stored in an appropriate form and mechanism to meet evidentiary requirements.

ORM is fascinating work and just as social marketing should integrate a legal component, so should ORM. In fact, ORM solutions are potentially ideal compliance solutions too, with appropriate features

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Compliance can be tricky, especially when it comes to social media. Get in touch with us to discuss your business' requirements in more detail and how we can help your business be more legally compliant.