A few weeks ago, Facebook CEO Mark Zuckerberg testified before the Senate. That’s not news.
Senator John Kennedy (R-LA) stated the obvious: “Here’s what everyone’s been trying to tell you today — and I say it gently — your user agreement sucks.” Senator Kennedy suggested that Mr. Zuckerberg tell his $1,200/hour lawyer to write the agreement in English, “so the average American user can understand.”
Facebook knows how to do this, at least fairly well. So why didn’t they?
The Center for Plain Language ranked Facebook 2nd in a 2015 study of 7 prominent online companies’ privacy policies. The results were published on Time.com. Details are here.
Here’s what one judge had to say:
Facebook, in the “What kinds of information” section, documents just about every interaction a customer has, and then talks about how those interactions are collected and stored. I’m marking this as above average not because I agree with Facebook’s practices, but because they’ve clearly communicated those practices.
If Facebook knows how to communicate clearly, and if Facebook is willing to communicate its privacy policies clearly, then why not communicate the user agreement clearly?
Senator Kennedy pointed out that a user agreement is written to protect Facebook, and Mr. Zuckerberg admitted that most people consent to the agreement even though they probably don’t read it. Sadly, Facebook still hasn’t realized that plain language offers far more protection than hiding the ball, despite employing expensive lawyers.
Every lawyer knows this loosely stated legal rule:
If you confuse the other side too much, the other side gets the benefit of the doubt.
And then there’s trust. One of the Center’s judges pointed out that “the use of plain language tends to build trust between a company and its customers . . . the market will likely dictate when and the extent to which the companies improve.”
It appears that day is here.
About the author: Julie Clement has been a law professor for the past 16 years, teaching legal research, writing, and drafting. She recently left legal education to pursue private consulting. Her firm, J Clement Communications, focuses on legal writing, legal drafting, and plain legal language.