I was very pleased to discover that the Department of Business, Innovation and Skills is currently running a consultation on the future of terms and conditions (Ts&Cs) which will be open until the 25th of April.
This is my response.
Full disclosure – I work for the Government Digital Service but am responding to this consultation in a purely personal capacity.
I think this is an once in a generation opportunity to do something about the current state of Terms and Conditions (Ts&Cs) as well as End User Licence Agreements (EULAs). As per the Executive Summary of the consultation “When was the last time you clicked ‘accept’, without even looking at the terms and conditions you were signing up to?”
The reason for this is obvious to anyone who has ever clicked on a Ts&Cs link or glanced at a warranty for a product they have just bought. It is because those documents are a wholly one-sided expressions of business risk with no concern for the needs of the person on the other side of the, often implicit, contract.
At GDS our work is focused on delivering products and services that are based on user needs. I encourage BIS to work with professional user researchers to investigate what the needs are of all the parties in this situation.
I believe that one way forward would be introduce a level of standardisation into the Ts&Cs process. GDS has mediated a number of standardisation efforts with multiple government departments, the private sector and the 3rd sector via the Standards Hub process.
One way forward could be achieved by analysing a broad cross-section of existing Ts&Cs and EULAs and looking for common themes. On the face of it this appears to require a large amount of painstaking work. However, instead I see it as an opportunity to work with the best of British academia on a textural analysis project. A grand collection of Ts&Cs could be made and fed into an analysis program which could then automatically derive repeated patterns.
Once those patterns have been identified I recommend publishing a voluntary government backed set of Ts&Cs based on the mechanism pioneered by the Creative Commons licensing model.
Creative Commons expresses each of its various licenses in three different ways. At the highest level there are simple pictorial representations of the item in question. At the next level there is simple textural content that is still intended to be understood by average consumers. Finally, there is the full text of the contract written in legal language. Each view represents the same item.
I suggest that for each of the common patterns found in Ts&Cs a similar three-level representation is created. This will allow consumers to quickly become used to looking at a set of icons on packaging or webpages to understand how, for example, any private data that is collected will be shared by the product or service. At the same time the underlying full legal contract will be in force to protect the supplier.
I suggest having a page on GOV.UK that allows anyone to look up the icons in question and navigate to the full legal underpinnings.
I believe that to start with the implementation of such proposals by business should be voluntary due to the potential cost of change. However, if done well the improvement should make enough difference to citizen purchasing choices for the market to drive uptake.
Whatever system is initially decided on I urge the department to transparently publish its early conclusions, as well as to undertake extensive further user research, and be prepared to repeatedly iterate the design before final publication.
I would like to take a moment to thank the Minister for the opportunity to be part of this discussion and look forward to being able to provide further feedback once the initial proposals have been made public.