“I read and understood the terms and conditions,” is perhaps one of the greatest lies of modern life.

As consumers, we check, click, swipe and sign almost every day without having much more than a cursory glance at what we’re giving away. Is it that we just trust the organisation we’re interacting with? Have undue faith in a regulator to be looking out for our best interests? Or do we just not really care?

To some extent, the drama around Qantas – and the accusations about how they’ve been treating customers who have purchased their products in good faith – has brought focus back onto the contracts, agreements and policies we generally lump into the category of terms and conditions.

As importantly, come November new laws will be in play in Australia designed to protect consumers and small businesses from unfair terms in standard-form contracts. ACCC deputy chair Mick Keogh is pretty clear when he says, “The changes to the unfair contract terms laws should motivate businesses to take steps to ensure their standard form contracts are fair, including by removing or amending concerning terms.” Penalties for businesses getting this wrong have also been stiffened from $10 million to $50 million, which should be enough to get the attention of most boards and executives.

Bundle that with the firming of the rules around informed consent in the privacy space – with its requirement for an organisation to clearly explain how they want to handle your personal information, and communicate that request in plain English, without legal or industry jargon. For most tuned-in organisations, it’s been enough to get them thinking a bit harder about what’s lurking deep in their fine print.

It’s fair to ask, why are we here in the first place? Here’s the reality. Across finance, telco, insurance and superannuation, brands spend a fortune attracting customers. And most of the time, the relationship is a good one. But like bad plumbing or online dating, customers tend to only find out about the intricacies of the relationship when it’s already too late.

Policy buck-passing

If you’re running an organisation, today terms and conditions have become a window to the worst parts of your brand, giving a customer direct access to your deepest and most private thoughts.

I picture most brands as a stealth hoarder’s house. From the street, it’s perfectly manicured – not a blade of grass out of place or a cobweb to be seen. Very appealing. Get through the polished front door where most of the business happens and there might be a few dishes lying around the kitchen, but it’s still very tidy.

Invite yourself into the backyard however and hidden in plain sight is a festering dump waiting to combust. Years of terms, conditions, policies and agreements piled up and up, lingering in case one day they might be useful. No one is bold enough to say anything to the hoarder because it’s expected they’ll defend their right to hold on to it all with such unreasonable but fierce tenacity.

In most organisations, it’s surprising how often the owner of this mountain of policy junk is impossible to identify. Brand looks at marketing who look at product who look at legal, who blame all the people in legal who used to be there but aren’t any more. Everyone is protective based on the perceived concerns of someone else. But when we turn up with our metaphorical excavator and a convoy of skips to clean house, the people who we all imagine will chain themselves to the pile suddenly can’t wait to get their gloves on.

This circle of buck-passing travels externally too. Business blames the regulators and government for baking in the complexity, but the government and regulators swear black and blue about their commitment to solving the problem for the benefit of the customer. It’s there in writing: in the wake of the Banking Royal Commission, ASIC states that it expects financial institutions to always put customers first, treat them fairly and ensure they don’t take advantage of the vulnerable. On the back of the new laws around standard form contracts, the ACCC has also reinforced its guidance that contracts must be clear and transparent in the language and key terms.

So if businesses are creating rubbish policies because they believe the regulator says they have to, but the regulator tells them they have to always put their customers first, how do we rationalise the current situation where the customer is clearly dumped at the bottom of the well?

The fix

It starts by fixing the connections within these organisations and aligning around a genuine customer agenda. At the moment, most of these problems are caused by a lack of shared vision across the people who market the product, those who create and manage the product, and those who write and oversee the rules governing how the product is used. It’s not an impossible task – it just needs focus and energy to bring these often-distant groups together.

It can be done. Some of the big banks have already gone down this route. Ask them and they will tell you credit card terms and conditions have become so complex they are the cause of large swathes of customer complaints. And customers are of the opinion banking T&Cs are designed to protect the business rather than the consumer.
Creating better, more straightforward and understandable terms and conditions takes effort. Multiple internal teams, external legal partners and communication experts will be required to strip out the junk and fold multiple documents into one. Hopefully with a better balance between bank and customer.

But you will need a mandate. Executive support. And you'll need cooperation.

Look further afield and it’s even worse in the black hole of privacy policies, where the Office of the Australian Information Commissioner offers guidance that wouldn’t look out of place in a brand playbook. They suggest that brands, “Don’t treat the privacy policy as a legal document to manage legal risk. It should be a document that creates trust in your entity and speaks to your customers or clients.”

But how’s the irony in this? A Guardian Australia article titled, ‘Click to agree with what? No one reads terms of service, studies confirm’ opened with a pop-up across it requiring the reader to accept both their Privacy Policy and Cookie Policy before reading on. Wanting to disprove the headline immediately, I clicked through to the Privacy Policy. There, I found 19 chapters across 16 A4 pages and 6,837 words. Outrageous.

As so many businesses have found in recent years, these issues have real consequences. Whether you’re a bank, telco or airline – building relationships is all about building trust through transparency and integrity. Consumers need reassurance that the brands they’re dealing with are stable, straight-up and honest.

It might not be sexy. But that starts with the fine print.