Lesson: Don’t Bury Important Stuff in Your TOS

By Josh Catone
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This is something you likely already know: a good portion (perhaps the majority) of your customers probably haven’t read your license agreement, terms of service, or privacy policy. Savvy consumers should struggle through the legalese in order to get handle on where they stand with the companies they buy products and services from. However, for reasons we’ll talk about, many of your customers or users will never bother to read your TOS or other public facing legal documents. The lesson for web site owners in that should be: don’t punish consumers for failure to read your terms (and/or make your terms and policies easier to read and understand).

Today, someone at one of my favorite link sharing sites Hacker News shared a link to a four year old article from the San Francisco Chronicle about photo sharing site Ofoto (which is now Kodak Gallery). The article relates the story of a woman who signed up for Ofoto in order to store photos because the site offered free image sharing space. 12 months later, though, her photos were deleted without warning (sort of).

As it turns out, Ofoto had a clause in their terms of service saying they could delete a user’s photos if the user hadn’t purchased one of their products or services over the past 12 months. Apparently, the stipulation was buried deep in the fine print. To Ofoto’s credit, they said they tried to contact the customer five times by email before deleting her photos — which was their policy, but the email address on file wasn’t valid.

Kodak Gallery still has the same rule, but it only mentions it in tiny print on their sign up page, and in bold in the first paragraph of their TOS. That’s better than Ofoto, but shouldn’t such an important bit of information be made more clear to users? Burying that information in fine print, or even worse in the terms of service, almost ensures that users will miss it.

So why don’t people read terms of service and other web site policy documents? Because we’ve been conditioned not to. User agreements and policies are more often than not thousands of words long (i.e., multiple printed pages), and written at a college grade level. Would you read a terms of service document that’s 8 pages long and reads like a college text book? Would you read every one you come across in the course of using the Internet on a daily basis?

We reported on a Carnegie Mellon study in October that found that if users actually stopped to read — with enough attention paid to guarantee a fair level of comprehension — every privacy policy they came across in a year of average web surfing, it would take them 8 days of solid reading (201 hours). And that’s just privacy policies for web sites. Add in terms of service, license agreements, return policies, and other documents for web sites, software, mobile services, real world purchases, etc. and it’s no wonder consumers just click “Agree” without actually reading them. No one has that kind of time.

So there are two important lessons here:

  1. Make your policies a lot easier to read and as short as possible. BillMonk’s privacy policy is a good example of how to write a good user facing legal document — it’s relatively short and written in plain English.
  2. Don’t bury important information in policy documents. If there is anything vital that your users should know, spell it out to them clearly and somewhere they’ll actually read it.

Both of these lessons can be boiled into one simple axiom: a positive user experience should be paramount. According to the Chronicle article, that was the lesson Ofoto learned as well. “[Ofoto] may start alerting members to the looming demise of their photo albums when they log on to the site — a much more consumer-friendly approach,” they reported. Of course, four years later Kodak Gallery has the same policy and doesn’t seem to make much of an attempt to make it clear to users before they sign up. Seems like they might still have some learning to do.

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  • nachenko

    Honestly, all those agreements are crap for lawyers. Page after page of extremely boring, complicated writing that no-one but a lawyer understands on the first try.

    What do you call 1000 dead lawyers at the bottom of the ocean?

  • markfiend

    What do you call 1000 dead lawyers at the bottom of the ocean?

    Not enough lawyers?

  • Bace

    What do you call 1000 dead lawyers at the bottom of the ocean?

    “a good start”? i think the joke was?

  • What do you call 1000 dead lawyers at the bottom of the ocean?

    A legal all-you-can-eat-buffet for sharks ;)

  • roosevelt

    To be honest with you, it’s an advantage for business owners to bury these important parts ;).

    Because, if the first thing a user reads that their photo will be deleted if they don’t purchase an item, the conversion might drop as high as 50%

    Sometimes, when people register they don’t have any intention of buying. But, after using the service they choose to buy, whether they read the TOS or not.

    And sometimes they just don’t because a particular TOS is asking them for money.

    I take the time to read TOS and other documents, especially if I am buying something online (e.g. product/services)

    However, in the beginning I didn’t. But after getting slapped by some of the companies, I made it a habit to read and make sure I keep things in order.

    You are not hiding the information, it’s in the paper small or big, it’s not your fault that the user is lazy and doesn’t want to read or can’t read.

  • workitout

    As a lawyer who helps clients with TOS for their sites, I actually agree with most of these comments and Josh’s article. A good TOS is clear and basic and makes sense in plain English (or French, or German, or Japanese, or whatever). Some of the length can’t be helped because of the need to be thorough, but clarity should be the number one goal.

    I have had clients complain before that the TOS I wrote for them weren’t “lawyer-y” enough, and should be more official sounding and full of dense language. I have had to explain that they don’t need what they think they need.

    Thanks for the good article, Josh.


  • @roosevelt But then don’t you also risk bad press generated by irate users who feel like they’ve been screwed because they missed something important was buried in the fine print?

  • roosevelt

    Well it doesn’t work like that in business, or at least I don’t let it bother me.

    From my experience, no matter how clear you are about things, there will be always one bad apple out there, giving you negative reps.

    If you spend too much thinking about them and forget to improve your service/product for the people, especially those who completely understands and respects your TOS, then you might have a hard time lasting in business or might not profit as much as your potentials could be.

    Purchasing a product or service is a binding contract, and you need to treat it like one. So, if it’s easy to read or not, you need to read it or get someone to read it for you if it’s too difficult for you to grasp.

    A friend of mine who studied business, actually told me that, one of the things they learned while reading is, it’s actually fine and legal to write a TOS any way you want. Because what may seem buried to you, is not buried to someone else.

  • anantj

    A legal all-you-can-eat-buffet for sharks ;)

    Nope it is not. Sharks offer professional courtesy to lawyers ;)