Analysis: we all instinctively click the box which says 'I have read and understood the terms and conditions', but should we read the fine print?

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It's been called the biggest lie on the internet. And let's face it, we’ve all done it. A click of a box accompanying the words 'I have read and understood the terms and conditions’ and our website order is complete with minimum fuss.

Of course, the reality is that we have not even tried to read, let alone understand, the terms and conditions that apply. It’s a lie that is everywhere. With Covid-19 restrictions leading to a sharp increase in online shopping, more and more of us are at it.

The evidence is clear: most consumers never read the fine print. A study by US academics provides a striking illustration. Students at an American university were asked to sign up to a fictional social networking service called NameDrop, a hypothetical competitor for LinkedIn. Participants were presented with a button labelled 'Join' underneath which was a statement ‘By clicking Join, you agree to abide by the terms of service’.

Two ‘gotcha clauses’ were added to the terms of service. The first allowed the site to share users’ personal data with the US National Security Agency. The second required users to provide a first-born child as payment for access to the site’s services. 98% of the 543 participants missed the ‘gotcha clauses’ and signed up to the service by clicking ‘join’ without reading the terms and conditions.

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The results of this study are not surprising - the 'no-read' phenomenon in consumer contracting has long been recognised - but does it matter? Should we spend hours poring over the fine print of our everyday transactions to try and uncover possible 'gotcha clauses' before we click to agree? Or are we, in fact, acting perfectly rationally by not reading the fine print?

The truth is that most consumers recognise the realities of the situation. They know that there is little choice but to accept the terms and conditions if they want to access the goods or services. They realise that they can’t negotiate for better terms. They also realise that it will take a lot of time and effort to read through the lengthy fine print that is packed with legal jargon. Consumers also tend to be optimistic about the risk of adverse events arising from their transactions. Many consumers also trust that the law will protect them if anything goes wrong.

So is there anything in the fine print that we should worry about? And if so, will the law protect us? The law generally recognises the enforceability of 'click-wrap' agreements, so where a consumer clicks 'agree', it is likely that they have entered a binding contract. There is also a possibility that the contract may contain some worrying clauses. Examples include clauses that sign away the consumer’s right to go to the courts of their home country, or clauses choosing a foreign law to apply to any dispute. There may even be clauses excluding or limiting the liability of the trader for any defect in performance, including for defective goods or services.

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The good news for Irish consumers is that these kinds of terms are likely to be unenforceable thanks to legislation implementing the European Union's Unfair Terms in Consumer Contracts Directive. The legislation allows the courts to review contract terms for unfairness and there is a requirement that the contract terms should be written in 'plain intelligible language'. The bad news is that many consumers may not recognise that the terms are unfair and unenforceable and simply accept them without complaint. It may also be difficult and costly for individual consumers to go to court to fight against unfair terms in their contracts.

This is why collective action by public agencies and other consumer organisations is vital. National agencies such as the Competition and Consumer Protection Commission can initiate court injunctions against traders. They can also actively promote the use of fair terms and can negotiate with traders to secure removal of potentially unfair terms from standard contracts. Private consumer advocacy organisations can also play an important role in highlighting unfair terms and conditions across various sectors.

The 'no-read' phenomenon is unlikely to be resolved easily, but it is still important to promote the transparency of website terms and conditions. Website terms should be accessible and readable so that consumers at least have the opportunity to give informed consent. While most individual consumers may not read the terms and conditions, other groups may. Journalists, social media commentators and bloggers often play an important role in highlighting potentially unfair terms, particularly in relation to the larger website traders.

Studies show that reducing the amount of information in T&Cs and framing it in innovative ways can increase readership

So how can transparency be improved? Studies show that reducing the amount of information in T&Cs and framing it in innovative ways can increase readership. Text can be structured using headings and highlighted words. Summaries and formats such as FAQs or flowcharts can also be used. Visualisation and imagery can help to highlight, clarify and explain the content of terms. These simple steps to improve transparency are important. After all, the more that people read the fine print, the less 'invisible' the terms become and the more incentive there will be for traders to provide fair and balanced contract terms that, in the end, will benefit us all.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ