Contracts are not designed for comprehension by vulnerable people; they’re not even designed for average people. They’re designed for comprehension by the most capable people in that field. People who have studied for many years, are part of a system, and work hard to protect their in-group within that system.
Look at any contract, or read the terms and conditions of your energy or phone agreement. It’s another language. Sit in on a legal case. It’s a closed shop. Read some Parliamentary Acts. Even the politicians admit they don’t really understand them. They need a team of advisers to translate and explain them.
They’re written by specialists in the field, who work with other experts, to craft documents that are dense, full of arcane and internal language, and designed to obfuscate, rather than inform. It’s not simply information asymmetry, it’s everything asymmetry. The power is totally in the hands of those who write the contracts.
And yet, we have this expectation that the average person should be able to advocate for their rights when they’ve made a mistake, and take responsibility for agreements they signed, or terms and conditions that they clicked yes to, under less than ideal conditions.
This notion of explicit informed consent, certainly how it’s currently seen by many in the legal system, is at best, misunderstood, and at worst, a joke. The key issue here is, what do mean by informed?
If we tell somebody something, ostensibly, from our perspective they have been informed. But, have they understood it? A lawyer may well say that the obligation is simply to inform, rather than being assured that a person has understood something. And that is a reasonable argument, in the context of the legal system.
But, if the intention of “informed” is actually about comprehension and understanding, then we enter a completely different conceptual zone. My belief is that the word informed is problematic when seen in the light of consumer behaviour and empowerment.
Like many issues in the consumer affairs context, once again, it takes power away from the individual, and places it in the hands of those more powerful – those people who have the access and resources to specialists, time, money and technology. The obligation of the provider to inform, rather than the consumer to understand, highlights the problem with this system and this terminology.
Clearly, this has to be one of the big questions for consumer advocates, for business and for social policy.