made a compelling case for readability of contract terms and conditions, having
hired Sydney actor Laurence Rosier Staines to read the 73,198 words of the
Amazon Kindle terms and conditions – aloud.
Laurence starts out with enthusiastic professionalism …
CHOICE head of media, Tom Godfrey, said, “Right now, the law protects us
from unfair legal terms. But we think the practice of expecting a customer to
spend hours of their lives reading a contract for a simple product is unfair.
Companies need to do better and they should be explaining any conditions in a
way that’s simple and easy to read.”
It’s not just a question of overly lengthy terms being unattractive
for consumers to read. Unreadably long terms and conditions:
are often based on an approach of throwing in everything the
drafter can think of, without working through what’s applicable for
your individual business and tailoring accordingly.
can be less effective than clear, readable terms – for example, if
disclaimers are not reasonably prominent, courts may decide that
your terms are misleading or deceptive.
can be inconsistent with the Australian Consumer Law if they purport to
limit consumers’ rights in a way that is not permitted, for example if you
exclude refund rights for faulty goods.
can actually create more potential for complaints and disputes, if
consumers have found them so difficult to read, they don’t end up understanding
your product or service offering – wasting your time and money to resolve.
If you would like a review of your terms and
conditions to check whether they work for your business and Australian
law, contact us.
Here is a round-up of some key developments in 2016:
The Telecommunications Sector Security Reforms went through 2 rounds of public consultation and have now been referred to the Parliamentary Joint Committee for Intelligence and Security. These reforms will impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
Data protection remains a key focus area with significant developments continuing in Australia (including the Notifiable Data Breaches Bill), the EU (the European Union General Data Protection Regulation will take effect in May 2018 and will significantly affect data relating to employees) and across the globe.
Trade secrets have become another focus area. In 2016 the European Council approved the Trade Secrets Directive to harmonise European trade secrets protection. Member states will need to implement the directive by mid 2018. The US Defend Trade Secrets Act 2016 has created a federal jurisdiction for misappropriation of trade secrets including significant whistleblower protection which will need to be reflected in US employment and confidentiality agreements.
Ahead of the release of its 2017 priorities, we can anticipate that the ACCC will continue to focus on unfair contracts in business, cartel conduct (following the significant financial services case) and optional extra preselection in the airline industry. The ACCC is seeking submissions on a proposed FIFO airline alliance (due on 27 January) and on its draft decision for the declared superfast broadband access service (SBAS) and the local bitstream access service (LBAS) (due on 17 February).
Further legal and regulatory attention is likely in the problematic commercial VET sector, with reforms promised to address the significant consumer protection issues that were highlighted during 2016.
On the IP front, submissions are due by 22 January on the proposed IP Laws Amendment Bill.
The new unfair contracts rules will apply to protect small businesses in standard contracts that are made or varied from 12 November 2016.
Franchisors should already have amended their agreements and disclosure documents, and included the new information statement in their document packages, following the earlier amendments to the Franchising Code of Conduct that took effect last year.
Franchisors also need to remember to keep their disclosure documents up to date.