Tom Chi  

Legalese vs. Usability

July 8th, 2005 by Tom Chi :: see related comic

Legalese is a strange thing to have in a piece of software. Strange because it fits neither the language of the user nor the language of the developer. Strange because it forces us to agree to baffling clauses for pages at a time before we can start to do the simplest of operations. There is a reason for all this, of course. No company wants to get sued, but a clumsy presentation of legal text can kill the mood faster than nearly any other usability mistake.

This problem has become notable for websites where the customer, not having paid a cent for the software, feels little commitment to “get it to work.” If a site asks for registration and then serves pages of legal text for one to approve before registration is granted, you can be sure that you are losing countless customers. Similarly, if a legal policy changes often, (I’m talking to you, schwab.com!), customers have a difficult time gauging exactly what has been agreed to and feel little security that their current agreement will meaningfully last.

This is probably the most unfortunate side effect of how Legalese is served in software today - the nagging uncertainty over what you’ve agreed to and how permanent that agreement is. If schwab can change their policy week to week, who’s to say that they won’t sell out my data after some later policy change? Or if a company with a wonderful privacy policy is acquired by one with a terrible one, which policy holds?

Perhaps we could get somewhere if we started applying some of our HCI skills to the problem of legal document review. Clearly, the ALL CAPS madness needs to stop. But beyond this, we will need clear ways to structure legal documents so they are scannable, readable, complete, and clear. Creative Commons has gone a bit down this path by essentially iconifying different types of legal agreements and giving “plain english” versions of contracts. What other things might be possible? Are there any lawyers in the house that could talk about what it would take to shorten and clarify these documents without diluting their effectiveness?

21 Responses to “Legalese vs. Usability”
James wrote:

A while back I drafted a legal agreement for a web service we were creating. My starting point was to cover our ass and put in as many popular clauses as possible. Once the draft was finished I took the document to our solicitor who promptly cut great swathes from it and gave it back to me. I did not recognise it as the same document and told him so:

“This is so..thin.. aren’t we leaving ourselves wide open to all sorts of legal action?

His response was that we were more likely to get sued over legal terms and conditions that were so wordy that many customers could argue that they were not readily understandable.

It was easy for us, being a small start-up at the time, we let the solicitor take the risk for us, knowing that he would be defending his own decision in court, if it ever came to that. I doubt large companies have that luxury.

Tom M wrote:

Your solicitor is correct. The more words the more arguments. The more arguments the greater the exposure! The reason big companies have long legal statements, is because bigger companies have greater bureaucracy and more clutter (like their homepages). Stick to the short legal statements that address all the critical issues succinctly.

Honey wrote:

BEE sure to

SEE the Creative Commons mission in motion :

http://mirrors.creativecommons.org/

& the about page ;)

http://creativecommons.org/about/history

Ian Stalvies wrote:

I find it somewhat ironic that usability arguments like these are finally being won:

“the web is not an printed page”
“the web is not a tv commercial”

… and yet when it comes to law, we have to keep the same 10 pages of legalistic jargon that no time-pressed individual in their right mind has time to decipher.

eg. every other time I log into my (Citibank) bank account, I am hit with a request to agree to the latest revision of their full terms and conditions.

Besides the 19th century grammar from the House of Lords, there’s never any indication of WHAT TERMS HAVE CHANGED. Thus for all I know Citibank could now have the right to seize my home and family for missing a payment.

But sarcasm aside, I think the main reasons are laziness and politics - lawyers, correct me if need be, but I imagine a lot of the T&Cs would be covered by Consumer Protection / Trade Practices Acts in each jurisdiction.

Cheers

Ian.

Robby Slaughter wrote:

The problem here is simple to define, but incredibly difficult to resolve: the law has poor usability. Laws, contracts, legal agreements, letters of intent, privacy policies, notices and countless other flavors of legal machinery are all designed to cover every possible situation and protect every concievable asset. The interface analogy has already been covered on OK-Cancel (http://tinyurl.com/8wuak)—the law is even worse.

Making the the law usable and accessible would require a total upheaval of the legal profession. You think it’s hard to get engineers and managers to sit through a usability test? Try getting lawyers, judges and congressman to witness their intricate, byzantine structures confuse and enrage the average citizen, and then convince them they need to change their ways. That’s just not gonna happen until at least the 35th century.

Instead, I think it might be easier to build interfaces that convince users that we aren’t just making promises, but that we have systems in place that make it *impossible* for us to abuse our relationship. This isn’t really done now, so I’ll illustrate with an example.

Suppose you’re building an email client, and you want to assure users that nobody will ever read their mail. Rather than submit them to all kinds of legalese to assert this, you can attempt to *prove* to them that nobody *can* ever read their mail through the interface. The UI migt have both the plain-text entry field and an encrypted field where you could see encoded garbage being displayed *as you typed*. Combine that with animation that shows the plain text being “discarded” and the encoded text being “sen”t, and you start to make a case.

Obviously this example is a little half baked, in the same way that Diebold electronic voting machines that have no visible paper record could be programmed to lie about actually recording votes. I think it’s on the right track, though, because it helps take the dicey question of trust out of the user experience.

Tomer Chachamu wrote:

Robbie Slaughter:

I think that this would create a false sense of security. Such things are easy to fake. People should not simply trust that a program does what the animation claims it does.

Robby Slaughter wrote:

Tomer:

That was my final point…”Obviously this example is a little half baked”…but in principle I still think it’s correct. Unfortunately we’ve made computers so opaque that this is difficult to do.

Here’s a more complex example which is totally complete. Suppose you had a simple little encryption box which sat between your USB keyboard and your USB port on the computer, which included a small display. Every time you pressed a key, it would show you the character you pressed and then show you an encoded form of that character, which it would pass on and which would appear on the screen. You could use this to type in credit card numbers with no fear of interception by keystroke loggers or whatever else.

The only opportunity for deception then, is the encryption box itself. And since you can take it apart and see how it works, you can convince yourself it’s not secretly recording your data.

Seems a lot less awkward than “privacy policies”, and a lot more reliable.

J. Scott wrote:

I am glad this is being addressed.

There are several products and services which I do not buy and refuse to use, or have stopped using, once the legalese got too dense. For example, when ebay’s agreement surpassed FORTY written pages of nonsense, I wrote to them complaining. I received no reply and so I closed my account. Also stopped using half.com because of this.

When I went to replace the battery for my APC power unit, they presented me with a long contract to agree to in order to be permitted to buy the battery. I sent a long letter complaining about this and asking if it was necessary to them. I got no reply. I threw out the APC unit and bought a Belkin unit instead after checking the Belkin site to see that I didn’t need to agree to contracts to buy a battery. Since then I have bought several more Belkin units.

There is a piece of music software I use that I really like. I want to upgrade it, but their site requires me to agree to a contract AND to agree to any changes that will be made in the future. Who the heck is stupid enough to agree to a legal contract that can arbitrarily change without warning at any time? Apparently lots of people.

So far, when I tell these stories people say “It’s you with the problem”, “I just sign those without reading them.” and “If they ever tried to do something bad, I’m sure the government wouldn’t allow it.”

My policy is that if I am giving money to you for a commercial, non custom product, there will be no contract, except the one you give me guaranteeing it will continue to work for a reasonable period.

Maybe I am a freak. Maybe this stuff doesn’t matter to anyone. Or maybe companies are loosing thousands of sales because of this nonsense.

Banned in Boston wrote:

One of the better ones, I think: http://www.oxo.com/help_terms.php

It is, at least, relatively brief and in plain english. 8-)

(see also the privacy policy link)

Duncan wrote:

Re: Banned in Boston

Used to be even better until they “fixed” it:

http://web.archive.org/web/20030416144739/www.oxo.com/info/terms.html

J. Scott wrote:

By better do you mean bad? The oxo terms I find outrageous and prevent me from doing business with them.

“Your use of this Website in any manner constitutes your acknowledgement that you have read the Terms and Conditions and that you agree to follow and be bound by them”

Screw that - what material consideration do I receive from them in order to agree to such a contract? By what mode of law do they derive the authority to compel a person who is merely VIEWING THEIR ADVERTISEMENTS to agree by such viewing to agree to a contract? There is not a country in the world in which such a contract is enforceable and they know it. This shows that they are a dishonest and disreputable company that should be avoided at all costs.

“Oxo reserves the right to modify or change the Terms and Conditions at any time without prior notice to you.”

Thus, we are not only bound by a contract that we never agreed to, but the contract can be changed by them at will without notification? What if I want to change the contract to suit myself? Are they required to be bound by my arbitrary changes.

Screw oxo. They are losers and so are people who buy their crappy products.

J. Scott wrote:

Regarding the older T&C:

“It could prevent you from hearing from our lawyer (he’s big and ugly)”

This would appear to be a thinly veiled threat of physical violence against the user. Does that have high usability?

“If you visit our site, you’re legally obligated to the terms and conditions listed below”

Completely false claim legally and they know it. You really want to do business with a company that not only deliberately lies but tries to intimidate the customers who are coming to buy a freaking SLOTTED SPOON?

Please note that I can go down to the corner store and buy a Slotted Spoon or Vegetable Peeler and I do not have to give up any of my legal rights, deal with anyone’s laywers, nor pay outrageous prices for shipping. If you ‘usability’ gurus really think that the sort of intimidation and lies being promoted by sites like oxo is ‘ok’, then it’s no wonder so many of your lousy web sites fail within a couple years.

Brick and mortar is the way to go. Can you imagine if you walked into a Sears and a lawyer stopped you at the door and said, “Before you shop here, we need to go over some terms you’ll have to agree to. I need to see a photo id and get your social here, and you’ll sign and date this on the dotted line.” Do you honestly think that any store doing such a think would increase their sales? Yes, you guys do, don’t you. And that is why NO company needs ‘usability specialists’ OR lawyers.

Timmy wrote:

So this is actually an interesting topic, and I’d like to prevent it from turning into a rant.

> Do you honestly think that any store doing such a thing
> would increase their sales? Yes, you guys do, don’t you.
> And that is why NO company needs “usability specialists” OR lawyers.

If you recall this thread began with a usability specialist speaking out *against* legalese like this, so I think usability teams and legal teams are actually on *opposite* sides here. Presumably (in most companies today) the legal team says, “display this text or we’ll get sued for millions”, while the UI team says, “but this text will make us lose customers” — and management is more afraid of getting sued than it is of losing customers.

So why is this?

I guess it’s hard for the UI team to quantify how many customers it’s actually losing. Most customers who leave aren’t going to take time to write a complaint letter! But presumably it’s just as difficult to track customer feeling in brick-and-mortar stores — so why *aren’t* there any contracts to sign when we enter a Sears? What’s kept the lawyers from getting a foothold there too?

Reading the OXO terms of use, http://www.oxo.com/help_terms.php, I imagine that some fairly similar clauses apply to brick-and-mortar stores too:

“The entire contents of this Website, including text, images, music, … are subject to copyright, trademark” — similarly, the displays and decorations in a Sears are almost certainly copyrighted too. I know it would be illegal for me to take a camera into a Sears, photograph their logos, and use my photographs to design my own store… but somehow Sears doesn’t feel the need to make me sign something to this effect.

“OXO does not represent or warrant that this Website will be accessible without interruption” — similarly, I’m sure a Sears building manufacturer doesn’t ‘warrant’ that his store will always be open when the business hours say. Everyone understands that sometimes there are unexpected difficulties that force a store to close for awhile… but somehow, Sears doesn’t need me to initial my agreement to Murphy’s law.

“OXO or any third party who helped create, product or deliver the site are not liable for any damage you may suffer when you use it.” — If I walk into a Sears, fall down, and break a leg, is Sears liable for my medical costs? I’m assuming not, but if someone can sue McDonalds and win after being burned by a cup of coffee, then maybe Sears would be liable. Yet they let customer after customer walk around without signing a waiver!

If we accept that the Legal Profession cannot fundamentally be *made* user-friendly, then maybe a good avenue for discussion is to determine why businesses in some situations (like a brick and mortar store) leave the legal issues implicit or hidden, while in other situations (like an online store) feel compelled to shove it in the user’s face. Are lawyers pushing for more contracts in brick-and-mortar environments? If not, why not, and if so, what’s keeping them back?

Duncan wrote:

What made the previous terms “better” was that they were written in an easily understandable manner. The terms themselves were still rather ridiculous (as you pointed out, it’s silly to assume that I’m legally bound to their terms and conditions simply because I accidentally typed oxo instead of xox into my location bar) but they are pretty standard fare for most websites.

So were the old TOC perfect? Absolutely not, but by making them easier to read and understand, I’d say they were more usable, yes. Unfortunately, it appears that someone else out there didn’t think the Big and Ugly lawyer remark was very funny either, and now we have the dry legalese of their current TOC.

In reality, it’s more of a sentimental loss than a real one, since nobody ever clicks on those things anyway.

Kevin Cheng wrote:

J. Scott wrote:

If you ‘usability’ gurus really think that the sort of intimidation and lies being promoted by sites like oxo is ‘ok’, then it’s no wonder so many of your lousy web sites fail within a couple years.

Brick and mortar is the way to go. Can you imagine if you walked into a Sears and a lawyer stopped you at the door and said, “Before you shop here, we need to go over some terms you’ll have to agree to. I need to see a photo id and get your social here, and you’ll sign and date this on the dotted line.” Do you honestly think that any store doing such a think would increase their sales? Yes, you guys do, don’t you. And that is why NO company needs ‘usability specialists’ OR lawyers.

First, as Timmy replied, you don’t even need to read Tom’s article, the comic states pretty clearly that legalise tends to work in the opposite direction to usability so no, I at least don’t think incoherent legal preamble is ‘ok’.

Second, I’m not sure on what basis you say no company needs usability specialists but in your brick and mortar example, there ARE usability specialists. They’re the people who organize the store layout (space planners, interior designers, architects) and the ones who make sure you know how to turn on a TV without reading through the 50 page manual (industrial designers). Why do you think being unable to program a VCR’s is such a common example?

Back on topic, however, I do think it’s interesting that sites feel the need to say “just by using this site, you’re agreeing to blah blah” while walking in a store does not require this. I think it’s peehaps simply because the web is still relatively new and there are no guaranteed assumptions.

J. Scott wrote:

Kevin, yes I did read the article Tom’s comic. I assume you agree with Tom. My first comment said I am glad this is being addressed, and to make clear, I congratulate both of you for being the voice of reason on this topic in a world gone mad. That takes guts.

My subsequent rant was over the top, ok, but my sincere unfiltered reaction to the horrors that awaited my at oxo after seeing a positive review by two persons, who, without knowing for sure, I am assuming to be usability specialists or those with an interest since they are here to begin with. Instead of lauding oxo as an example of the right way to do things I really do see it, for the reasons I mentioned, to be a great example of something absolutely horrible. The first version was the worst of the two because of the familiar hip language that attempted to be funny. Great tone for a blog, totally wrong for a legal document. It also didn’t make the legal document easier to read, but harder.

J. Scott wrote:

By the way, as an alternative, on sites I design, I favor the use of no legal terms and conditions at all except a privacy policy and a warranty policy.

Here is an example of a warranty I have used:

“We at *.com want you to be thrilled with your purchase. If you are dissatisfied for any reason, just return the product to us within 90 days and you will receive a full and prompt refund (minus shipping) with no questions asked.”

Here is an example of a privacy policy I have used:

“Our Privacy Policy: We value your privacy. We will not share your information with anyone at any time for any reason.”

Robby Slaughter wrote:

Wondering why do we have Byzantine legal documents embedded in websites and software applications? Because lawyers want their piece of the pie too, and the only way to measure that contribution is in the quantity and obfuscation of their legalese. Unfortunately, you can’t fire the lawyers anymore than you can fire the engineers or the sales team. Everyone is needed—the question is how to apply these talents to produce great products that benefit (and don’t annoy or confuse) the customer.

Paul Brown wrote:

Blatently stealing an example from the travel industry, travel agents in the UK are usually affiliated with ABTA who are an independant body who provide a certain degree of comeback against rogue travel agents who attempt to rip you off. Whilst the contracts and terms and conditions of ABTA are no better than most, at least any potential user is only required to read them once.
The main thing that infuriates me is the way that software asks me to agree to a license with every update - probably the exact same license that I’ve already agreed to when I installed the damn thing. If we could band together to create an independant body then terms and conditions could be split into two sections, the agreed standards required by the association and the local laws, e.g.

MySite Privacy Policy

This site is an affiliated member of the International Association of Web Designers and complies with their Web Privacy Policy and all relevant international and local legislation.

…five thousand lines of legalese explaining exactly what the standard privacy policy is which the customer can be confident is exactly the same as every other affiliated site…

If customers can be confident that the independant body checks and enforces their rules then once they see the name / logo they can stop reading and get on with actually buying stuff which is what we want them to do.

Robby Slaughter wrote:

Paul: That’s basically what TRUSTe has been trying to do for years.

http://www.truste.org/

Erica wrote:

I just posted something on legalese in EULAs a few days back. http://www.sperari.com/archives/2005/07/14/softening-legalese-in-eulas/


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OK/Cancel is a comic strip collaboration co-written and co-illustrated by Kevin Cheng and Tom Chi. Our subject matter focuses on interfaces, good and bad and the people behind the industry of building interfaces - usability specialists, interaction designers, human-computer interaction (HCI) experts, industrial designers, etc. (Who Links Here) ?