Interesting read. I love reading about ToS stuff (though I never actually read any ToS). He says "Of course, there are challenges with implementing this approach..." Seems to me the biggest challenge is these things are written by lawyers. And I don't mean this to bash on lawyers, I just mean things written by lawyers are NEVER going to be simple. Anything written by a lawyer will be written to cover all the bases, not be simple and readable by regular folks. Again, not bashing on lawyers at all, this is just their job. My rather uninformed guess is we'll be reading articles just like this in 10 years when ToSs are 10x longer. I can't imagine there's a way to solve this problem.
And I don't mean this to bash on lawyers, I just mean things written by lawyers are NEVER going to be simple.
I think that’s a little unfair. When we were putting together the terms for a B2C web site I work on, our lawyer specifically and clearly advised us both to use plain English and to make sure any potentially surprising or unusual terms were prominent and early in the document.
The reasoning was simple and logical: ideally you want everyone to understand the deal the same way from the start, but if there is any subsequent disagreement that results in legal action, courts here in the UK are going to look at the contract pragmatically and try to determine what each party believed they were signing up for. As such, they are less likely to enforce a sneaky clause written in Latin on page 174 than they are a non-obvious but reasonable term that is right there in bold on the first page.
Ideally we would have written the terms to fit on a single screen/page instead of the probably 5x that we wound up with, but I’m not sure that’s realistic without much more standardisation written into laws than we have today, or at least recognised standard consumer contracts (which seems to be where the article here is going). We settled on having a “key points” summary up-front for those who do want to check the essentials but don’t want to wade through the whole thing, and our server logs suggest that a modest but noticeable fraction of our visitors do actually go to that page, spend a minute or two reading it, and then continue to sign up. I just wish some international treaty could harmonize consumer protection laws for the Internet age so a brief summary of key points was all we needed to write and was all our visitors needed to see because everything else would be reasonable by default.
