Either something is in the water or it’s been a very slow social media news month because there have been a rash of blog entries who think the sky is falling over social media platform terms and conditions. Don’t get me wrong, I love that people are finally reading some of the legal agreements that they accept when using platforms and software; I just take issue with some of their interpretations. I will post a few SoMeLaw Thoughts down the road about the specific blog posts (and if you have one you want me to look at, feel free to post them as a comment here). But before I get into specifics I thought it would be worthwhile to explain the big picture of why terms are long and why non-lawyers get confused reading them.
Here is the single biggest reason why you see so many blog and other posts that misinterpret terms and conditions: Law is not user-friendly. It has decades or longer of precedent that must be fumbled through; it must take into account rapid changes in technology while being written by processes created centuries ago that were designed to move slowly; it can be simultaneously too detailed and not detailed enough. And lawyers, for the most part, practice law by talking to other lawyers who speak their language (Legalese—it uses a lot of henceforths and semi-colons). So legal documents that approach regular English are not as common as I’d like to see. And when you have these long documents filled with hard-to-understand phrases THAT EVERY ONCE IN A WHILE SHIFT INTO ALL CAPS FOR NO APPARENT REASON BUT IT MUST BE IMPORTANT OR MAYBE THE AUTHOR’S KEYBOARD BROKE OR THEY WERE DARED TO WRITE THE SECTION IN THE STYLE OF “AOL CHAT ROOM” it can make reading, let alone understanding, these documents a difficult exercise.
Yes, there actually are reasons for the ALL CAPS and the lengthy sections and the overly technical Legalese, but good reasons aren’t a substitute for good communication. When a regular consumer is faced with 50+ pages of terms and conditions to install and use iTunes, they typically aren’t going to take the time to read that confusing document when they could just click a button and start listening to Flo-Rida’s “Club Can’t Handle Me” (Put your hands up!).
Don’t get me wrong, customers should read these terms. Their decision not to read the terms but to accept them anyway will go against the customer if the issue comes up in court. But I understand why a user doesn’t read the document. Now add into the mix a social media blogger who does start reading the terms and isn’t used to interpreting these terms or putting them in the proper context and suddenly they see the nightmare world that lawyers live in. And they start telling these scary stories to people who have already accepted these terms, making them even scarier. The lawsuit you may be terrified of is coming from INSIDE YOUR OWN FACEBOOK PROFILE!
Here’s one deep, dark secret about lawyers—we see risk everywhere. I can look at a picture of a man on a sidewalk and come up with a dozen potential lawsuits without batting an eye. And that’s before this hypothetical man crosses the hypothetical street. We lawyers spend years reading the most ludicrous cases you can imagine that involve chain reactions of people jumping onto moving trains, dropping bundles of fireworks that explode, and a concussive wave that tips over a large scale injuring a woman nearby (actual, famous case). It’s our job to see the worst potential outcome and help our clients avoid it.
So when a client comes to an attorney and says “Hey, can you draft up some terms for my business so that we’re protected from lawsuits?” then the lawyer’s mind starts spinning like a rickety travelling carnival ride that was installed without inspection, has no safety restraints in the cars, and is operating at twice the recommended speed. Our minds are now racing to give our clients the best possible defense to a future lawsuit.
That’s an important distinction—giving a defense to a lawsuit rather than preventing a lawsuit. Lawyers know that anyone can be sued by anyone else for anything. The question is whether the lawsuit has merit and will stick. Good terms and conditions will give you plenty of ways to dismiss the lawsuit with as little effort as possible, but you’ll still have to deal with the lawsuit. So that’s why these terms and conditions can run so long—they are trying to arm the company for a war that might come from the land, sea, air, space, other dimension, and in the case of some special litigants, parallel universes where your company is secretly in league with paranormal forces and therefore should pay the plaintiff one billion dollars. Drafting these terms are like packing for a trip when you have no idea if you’re going to Hawaii or Antarctica and you don’t know how long you’ll be gone. Writing good conditions are like writing a paragraph trying to summarize what writing terms and conditions are like—you’ll probably write too much even though you’re just trying to get a few simple points across. See what I mean?
Hopefully this paints the picture for the documents you’ve all clicked through without reading, at least how and why they were developed. The fact that a non-lawyer then misinterprets the document is an unfortunate by-product of the document being written mostly as a legal defense: the standard has slowly moved from whether a customer understands the terms to whether a court will enforce the terms. I believe there is room to move these documents back towards understandability while also maintaining their enforceability—and I think it’s a better result when you succinctly explain what a user is signing up to so they read the document, understand it, and remember it. But that’s a topic for another day.
Given the current environment of long, complex terms and conditions, we can’t be surprised that non-lawyers are misinterpreting these documents. Or even some lawyers. So when you read a blogger’s post about Facebook’s terms and conditions banning certain activity or why you’ll get sued for using Pinterest, take it with a few grains of salt. I’ll address some specific concerns in later posts, but hopefully you can now understand the bigger picture of how these terms and conditions can be misinterpreted. And if there’s a specific post you’d like me to take a look at, post it in the comments below.