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Disclosure Debates (. . . same old, same old)

posted by Amy Schmitz


We talk about disclosures, and the importance of reading our consumer contract terms before committing to any deal. However, does anyone really care about contracts? Let’s face it: Contracts have become largely meaningless until we run into problems and want to use the “terms” for ammunition to get a remedy. I am a Contracts Professor and often bypass e-contract terms when I am in a hurry or know that I could never get the terms changed. We are all lazy in reading contracts. I have confirmed this in my own research, which I wrote about in Pizza-Box Contracts: True Tales of Consumer Contracting Culture, published in the Wake Forest Law Review.  Disclosure debates are not new.

At the same time, texting and tweets as forms of disclosure have augmented shrouding and other tactics for effectivley hiding terms and contract modifications. The Federal Trade Commission hosted a one-day public workshop on Wednesday, May 30, 2012 to consider the need for new guidance concerning advertising and privacy disclosures in online and mobile environments. The workshop focused especially on challenges of making disclosures clear and conspicuous in social media and mobile marketing.

As again confirmed at the FTC hearing, disclosures should be (1) accessible before one must consent, (2) informative without being overwhelming, and (3) relevant to making consent decisions. That is all fine and good . . . but is it feasible? Complexities of social platforms such as Facebook and restricted space media like Twitter may not even be conducive to providing disclosures that consumers will take the time to read. This is especially true with respect to the targeted audience of young adults. I know I could never get my nephews to read the terms before downloading music!

Nonetheless, consumers at least should know when “Tweets” and Facebook postings are really traps, and that clicking could result in a contract. Yes, we are lazy in reading contracts, but we may actually take the time to read short disclosures that simply alert us that we are buying something and/or our private information is being passed to others. Indeed, one can imagine a curt announcement to this effect followed by a working link to a site or document that provides further information. That’s just one idea. Let’s think creatively and use technology to the advantage of consumers.

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