MXit’s inappropriate website terms and conditions language

I have been doing some preparation for a talk I am giving to parents at a school this evening and one of the services I am going to chat about is the popular messaging service, MXit. I came across this wording in MXit’s terms and conditions which struck me as somewhat odd:

Unless otherwise stated by MXit in writing, you must be at least 13 (thirteen) years old to make use of the MXit Application, the MXit Websites and the Services. If you are 17 (seventeen) years and younger, but older than 13 (thirteen), you will inform your parents or guardians that you have registered for and are using the Services of MXit and upon request provide reasonable proof that you have complied with this prerequisite for access to the MXit Application and the Services.

Bearing in mind that MXit is popular with teenagers as young as 13 (officially – Mxit, like many social services, is not technically available to children younger than 13), the language used in the phrase “upon request provide reasonable proof that you have complied with this prerequisite for access to the MXit Application and the Services” is not very appropriate given the likely level of comprehension children that age will have. These terms probably don’t meet the Consumer Protection Act’s plain language requirements either, given the context.

While MXit’s terms and conditions inspired this post, I doubt MXit is the only service that has made the mistake of using overly lawyerly jargon in a document which children are, theoretically, going to read and agree with (this is a problematic assumption, complicated by children’s limited contractual capacity) before using the service. Enforcing website terms and conditions against children will probably prove to be somewhat challenging and language like this doesn’t help at all. Providers should make more of an effort to simplify their language in their terms and conditions both to better comply with the Consumer Protection Act’s plain language requirements and improve usability generally.

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

Free online services may be exempt from the Consumer Protection Act

Consumer Protection Act compliance is not a simple or cheap exercise and one question which may have arisen for some online services is whether they must go through the exercise and incur the cost of ensuring compliance for free online services. While some “free” services are not really free (many “free” services are provided in return for something of value which may not be money), there are many online services that are truly free and requiring them to comply with the Consumer Protection Act may be overly onerous on them.

FREE HUGS

The Consumer Protection Act applies to all “transactions” save for those which exclude consumers generally speaking (for example, the Consumer Protection Act does not cover “transactions” involving companies above a certain size in terms of asset value or annual turnover; government departments and where the agreement falls under the National Credit Act). As for the term “transaction”, the Consumer Protection Act defines this key term as follows:

“transaction”, in respect of a person in the ordinary course of business, means –

  • agreement between that person and one or more other persons for the supply or potential supply of goods or services in exchange for consideration;
  • supply of any goods to or at direction of a consumer for consideration;
  • performance by, or at the direction of, that person of any services for or at the direction of a consumer for consideration.

The term “consideration” is also an important one and the Consumer Protection Act defines it as follows:

“consideration” means anything of value given and accepted in exchange for goods or services, including—

  • money, property, a cheque or other negotiable instrument, a token, a ticket, electronic credit, credit, debit or electronic chip or similar object;
  • labour, barter or other goods or services;
  • loyalty credit or award, coupon or other right to assert a claim; or
  • any other thing, undertaking, promise, agreement or assurance, irrespective of its apparent or intrinsic value, or whether it is transferred directly or indirectly, or involves only the supplier and consumer or other parties in addition to the supplier and consumer.

Website terms and conditions appear to qualify as a “transaction” under the Consumer Protection Act given that website terms and conditions are agreements between the website proprietor and visitors to the websites concerned. Website terms and conditions frequently take the form of an agreement and govern access to those sites and the services those sites provide. What remains to be determined is whether seemingly “free” websites’ terms and conditions meet the “consideration” test bring those websites under the Consumer Protection Act’s scope.

The “consideration” test asks whether visitors to these free websites offer anything “of value given and accepted in exchange for goods and services”? I mentioned at the beginning of this post that some “free” services are not really free. Take large examples like Facebook and a number of Google services for example. While its often not explicit, there is a trade involved: access to a service without the need to pay for it in exchange for personal information which, in the case of Google services and Facebook, enable the companies concerned to present more relevant ads so they can earn advertising revenue. In the absence of a trade of this sort, these sites would quickly go out of business due to the massive cost of keeping those services running. These online services would appear to be subject to the Consumer Protection Act and would be required to ensure they comply with the Act’s requirements, largely on the basis of this trade and the value required to gain access to the services.

On the other hand there are truly free resources available online which may present helpful information or provide some other free service. These services may be funded by donations or grants and users are not required to make any form of contribution that could be said to have the sort of value the “consideration” test contemplates. Those sorts of sites may well be exempt from the Consumer Protection Act and its costly demands for compliance.


Image credit: Free Hugs by drinksmachine, licensed CC BY NC ND 2.0