Writing in the Financial Times last week, John Kay reacted to apparent criticism of his failure to read terms and conditions in consumer contracts by explaining why his failure to do so was an exercise of his wisdom. You can read his full article {here: http://www.ft.com/cms/s/0/95ced808-2f4c-11e3-ae87-00144feab7de.html?siteedition=uk#axzz2hV0dHvY9} (registration may be required). His tone is reasonably reflected in the headline ‘Why I ignore Apple’s silly reams of terms and conditions’, even though that is not quite what he says; he has many more subtle points to make about the terms of trade being defined more by social expectations than by contractual terms.
Shortly afterwards, John Halton, SCL member, well-known tweeter and occasional blogger, was motivated to comment. John now works for the FT and felt bound to comment on why he had bothered to go into work despite a broad agreement with the thesis of John Kay. You can read his blog post {here: http://backtothethames.wordpress.com/2013/10/09/i-have-read-understood-and-agree-with-this-blog-post/}. As he says, ‘it is not merely rational to ignore the T&Cs, but actively irrational to insist on reading them all’, setting out a rough word count of the gargantuan T&Cs and privacy policies set out by some of the most obvious and vital operators in the IT field. But John went on to point out that, while general fairness assumptions or ‘social expectations’ may be adequate to determine most transactions:
{i}‘every business will know there are customers out there who will, not to put too fine a point on it, take the piss: “You never said we couldn’t do that! It doesn’t say we can’t in your terms!” So well-drafted consumer T&Cs are there, not to override the “social expectations” that are the true heart of the deal, but to embody those expectations and to protect them from abuse – by either party. Conversely, the occasional rows that blow up about a website’s terms usually stem from an attempt by that site to override users’ “social expectations”.’{/i}
Simon Deane-Johns was less enamoured of Professor John Kay’s stance – perhaps a little riled by its perceived naivety. In his blog post, {‘Why Consumer Terms Aren’t “Silly”’: http://sdj-pragmatist.blogspot.co.uk/2013/10/why-you-are-free-to-choose-not-to-read.html#!’}. He states that ‘While consumers rarely read them, certainty as to what consumer terms apply is fundamental to the efficient operation of retail markets.’ And goes on to say:
{i}‘Apple’s lengthy terms – and John [Kay]’s freedom to decline the opportunity to read them – not only facilitates the collaborative ecosystem that creates John’s ‘smart’ TV, but they also help everyone keep Apple and its suppliers honest.’{/i}
Simon is Chair of the SCL Media Board and I am thus very wary of disagreeing with him – I suspect my contract allows for my automatic suspension (I am not quite sure what clause 782 means) if I do – but I think he is being a little unfair to John Kay. While I have the somewhat boring position of agreeing with all the above writers to some extent, John Kay does identify an on-going problem. You may recall the story from three years ago about the GameStation insertion of a new clause in its terms and conditions:
“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 for ever 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 authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act, If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.”
Of course, nobody spotted it and ‘nullified the sub-clause’. That provoked my blog post on the topic which you can read {here: http://www.scl.org/site.aspx?i=bp16127}. I have been happily clicking ‘Accept’ for years, without reading terms and conditions, and have saved lots of time as a result. Sadly, the Devil is auctioning my immortal soul on Tuesday so it is not all good.
The worry I have about all this is more moral dilemma than legal dilemma. What do we tell an intelligent 16-year-old to do? My guess is that we would tell them to read the terms and conditions and not to be rash. Unless we are required to sit at the computer with them while the transaction is completed – in which case we will tell them to lie: ‘Yes, I have read and agree’.
Do let us have you views on all this, or you can join the discussion Simon Deane-Johns has started in the SCL LinkedIn group {here: http://www.linkedin.com/groups/Earlier-this-week-John-Kay-4031470.S.5794833926962827268?view=&gid=4031470&type=member&item=5794833926962827268&trk=NUS_DISC_Q-ttle}
