Look and Listen’s ineffective Twitter terms and conditions

Look and Listen started following me on Twitter and because it is a brand I care about, I took a look at its Twitter page on the Web and followed it back. I noticed that its background image contains text regarding its terms and conditions as follows:

Visit us on Facebook for T & C’s: Facebook.com/lookandlisten

This is Look and Listen’s Twitter profile page on Twitter as viewed in a browser (the screenshot below is taken off my 24 inch screen. Viewing the Look and Listen page on my 13 inch MacBook reveals almost none of the important text at all – try this on your screen and see whether the link is even visible):

Look and Listen Twitter page

While this is certainly one way to publish terms and conditions, it is not a very effective way of making Twitter users aware of those terms and conditions for various reasons. Before I explore the reasons, it is important to understand the value of terms and conditions as they apply to social media platforms. I wrote a post about that titled “Disclaimers for social media” which may be worth reading before continuing with this post.

This method replies on users viewing the Twitter profile in a Web browser with sufficient screen resolution to accommodate the whole background image. People using older displays or lower screen resolutions may not see the text indicator for the terms on Facebook at all.

The next challenge is that users viewing Look and Listen’s Twitter profile in other applications will not see the background image at all. Below are a couple examples:

Look and Listen Twitter profile on mobile
iPhone Twitter app

Look and Listen on Seesmic Web
Profile view in Seesmic Web

Look and Listen in desktop Twitter app
Desktop Twitter app

The background image with the link to Look and Listen’s terms and conditions are not visible at all in this views (and it is safe to say that a significant number of people using Twitter don’t use the Twitter page but rather apps with these or similar views) and those users viewing the Look and Listen profile are likely to be unaware that such terms exist. This means that they can not be said to have agreed to the terms or even be somehow bound by them in the absence of their knowledge of the terms’ existence. So that approach only perhaps works with a fairly narrow sub-set of users who view the profile through a Web browser with sufficient screen resolution.

There are a couple solutions which are probably better solutions. The one solution I came across is a regular tweet containing a reference or link to terms and conditions. One company that does this is actually a law firm and my previous employer, Werksmans Attorneys. This is what their terms and conditions advisory looks like:

Werksmans tweet about terms and conditions

This approach has its benefits. It reminds people who are following the Twitter account about the existence and location of the applicable terms. Its limitation is that first time followers who follow from a profile view are not necessarily advised about the terms and conditions upfront and that could be problematic.

Another approach, which I prefer involves inserting a link into the bio section of a Twitter profile. A nice example of this is Jeremiah Owyang’s Twitter profile which includes a link to terms that apply to his Twitter stream:

@Jowyang Twitter profile

The advantage of this approach is that a prospective follower will see the Twitter bio and the link in the bio in most, if not all, Twitter apps. It is the first encounter with a Twitter user and more readily regarded as binding on new followers in much the same way that website terms and conditions are binding on website visitors. The disadvantage is that the link is not visible other than in a profile view. The best approach is probably a combination of the approach typified by the Werksmans reminders and the bio link approach.

Another reason why the background image approach isn’t satisfactory is that the link is to a document located on Facebook. While referencing terms and conditions located on another page or website altogether is acceptable, Look and Listen simply refers to the Facebook Page which doesn’t have any terms and conditions apparent on the Page at all. I only received a link to various terms and conditions when I queried this with Look and Listen on Twitter in a direct messaging conversation.

The effect of this is that no real terms and conditions are presented to Twitter followers and this means that Look and Listen lacks a legal framework optimised for its social media activities on Twitter. Instead, it will find itself subject to whatever the default legal positions may be on a case by case basis. In other words, Look and Listen has not done much to mitigate its risks.

Competition rules and the Consumer Protection Act

Update: This post was prepared on the basis of the draft Regulations. The final Regulations were issued on 1 April 2011 and differ from the draft Regulations in some important respects including the requirement to report on various issues which are highlighted in this post. I’ll work on an update to this post in light of the final Regulations as soon as possible.

Competition terms and conditions must be carefully prepared under the Consumer Protection Act. They govern consumer’s relationship with competition promoters and form a contractual basis for that relationship. They can also be fairly tricky to develop given the myriad factors promoters must take into account. Section 36 of the Consumer Protection Act and the proposed Consumer Protection Act Regulations address how competitions should be conducted and, indirectly, what the relevant terms and conditions should contain. The Consumer Protection Act mentions two sets of documents used in connection with “promotional competitions” which it defines as follows:

any competition, game, scheme, arrangement, system, plan or device for distributing prizes by lot or chance if—
(i) it is conducted in the ordinary course of business for the purpose of promoting a producer, distributor, supplier, or association of any such persons, or the sale of any goods or services; and
(ii) any prize offered exceeds the threshold prescribed in terms of subsection (11), irrespective of whether a participant is required to demonstrate any skill or ability before being awarded a prize.

Curling Trip To Nelson British Columbia

In the first place the Consumer Protection Act prescribes what needs to be set out in an “offer to participate in a promotional competition”:

(5) An offer to participate in a promotional competition must clearly state—

(a) the benefit or competition to which the offer relates;
(b) the steps required by a person to accept the offer or to participate in the competition;
(c) the basis on which the results of the competition will be determined;
(d) the closing date for the competition;
(e) the medium through or by which the results of the competition will be made known; and
(f) any person from whom, any place where, and any date and time on or at which—

(i) a person may obtain a copy of the competition rules; and
(ii) a successful participant may receive any prize.

Section 36 alludes to three further sets of provisions which are meant to be set out in the Consumer Protection Act Regulations (currently draft Regulations being edited following a comment period):

  • A monetary threshold for the purpose of excluding so-called “low value” prizes from the “promotional competition” definition;
  • Minimum standards for promotional competition record keeping; and
  • Audit and reporting requirements in respect of promotional competitions.

The draft Regulations, published in October 2010, set the monetary threshold at R1. They also require the promoter (“a person who directly or indirectly promotes, sponsors, organises or conducts a promotional competition, or for whose benefit such a competition is promoted, sponsored, organised or conducted”) to ensure that a –

“chartered accountant, registered auditor, admitted attorney or commissioner of oaths conducts the competition and must be reported on through the promoter’s internal audit reporting procedures”.

Promoters must retain the following information for “at least five years”:

(a) full details of the promoter, including identity or registration numbers, as the case may be, addresses and contact numbers;
(b) the rules of the promotional competition;
(c) a copy of the offer to participate in a promotional competition contemplated in section 36(5);
(d) the names and identity numbers of the persons responsible for conducting the promotional competition;
(e) a full list of all the prizes offered in the promotional competition;
(f) a representative selection of materials marketing the promotional competition;
(g) a list of all instances when the promotional competition was marketed, including details on the dates, the medium used and places where the marketing took place;
(h) the names and identity numbers of the persons responsible for conducting the selection of prize winners in the promotional competition;
(i) in the case of a prize exceeding R 1.00 (One Rand) in value, determined by reference to what a consumer would in the ordinary course of business pay to purchase the prize, an acknowledgment of receipt of the prize signed by the prize winner, and his or her identity number, and the date of receipt of the prize;
(j) declarations by the persons contemplated in paragraph (d) made under oath or affirmation that the prize winners were to their best knowledge not employees, agents or consultants of the promoter or marketing service providers in respect of the promotional competition, or the spouses, life partners, business partners or immediate family members;
(k) a copy of the report contemplated in subregulation (6).

The promoter is further required to prepare a submit a full report referred to in (k) in the document retention list on –

… the conduct and outcome of a promotional competition, detailing as a minimum-
(a) the basis on which the prize winners were determined;
(b) the summary describing the proceedings to determine the winners, including the names of the persons participating in determining the prize winners, the date and place where that determination took place and whether those proceedings were open to the general public;
(c) whether an independent person oversaw the determination of the prize winners, and his or her name and identity number;
(d) the means by which the prize winners were announced and the frequency thereof;
(e) a list of the names and identity numbers of the prize winners;
(f) a list of the dates when the prizes were handed over or paid to the prize winners;
(g) in the event that a prize winner could not be contacted, the steps taken by the promoter to contact the winner or otherwise inform the winner of his or her winning a prize; and
(h) in the event that a prize winner did not receive or accept his or her prize, the reason for his or her not so receiving or accepting the prize, and the steps taken by the promoter to hand over or pay the prize to that prize winner, and must record the name, identity number and contact details of the person compiling the report and the date thereof.

Many of these provisions and section 36 itself inform what should be contained in competition rules. These provisions should deal with a variety of issues including relevant dates, competition mechanics, prize details, communication channels and how and on what basis competition participants’ personal information may be collected and used in the competition and for marketing purposes which may follow the competition’s conclusion.

Its important to bear in mind that competition terms and conditions are contractual provisions and the document is an agreement between the promoter and the participant. These terms and conditions must be carefully prepared to ensure they are complete and comply with applicable law and legal requirements including the Consumer Protection Act’s plain language requirement. Another important consideration is that consumers acquire a right, protected by the Consumer Protection Act, to participate in a promotional competition when they –

  • Comply with any conditions which must be satisfied to earn the right; or
  • “[acquire] possession or control of the medium, if any, through which a person may participate in that promotional competition”

This right, like other consumer rights, is protected by the Consumer Protection Act which imposes certain restrictions on promoter’s actions in relation to the competition itself and elsewhere in the Consumer Protection Act where consumers acquire rights. The fact that consumers acquire and may exercise rights, alone, is likely to have a profound impact on how the Consumer Protection Act is applied. These rights are explicit and are protected. Their explicit introduction has the potential to change our consumer oriented paradigms, which was probably the idea.

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.

Manuscript

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:
Zappon terms

Times Live:
Times Live terms

Facebook:
Facebook terms

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


Image credit: Manuscript by Muffet, licensed CC BY 2.0