My Lords, I am very pleased that the noble Lord, Lord Stevenson, has given us the opportunity to talk about terms of service, and I will make three points again, in a shorter intervention than on the previous group.
First, terms of service are critical as the impact of terms of service will generally be much greater in terms of the amount of intervention that occurs on content than it will ever be under the law. Terms of service
create, in effect, a body of private law for a community, and they are nearly always a superset of the public law—indeed, it is very common for the first items of a terms of service to say, “You must not do anything illegal”. This raises the interesting question of “illegal where?”—what it generally means is that you must not do anything illegal in the jurisdiction in which the service provider is established. The terms of service will say, “Do not do anything illegal”, and then they will give a whole list of other things, as well as illegality, that you cannot do on the platform, and I think this is right because they have different characteristics.
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Secondly, to back up the point made by the noble Baroness, Lady Kidron, we need to be realistic that no one will ever read all the terms of service of the services that they use. There was a study that looked at how long it would take to read the terms of service on a typical mobile phone—I think it is around 10 days; given that they get updated most years, are any of us going to spend 10 days a year reading the terms of service?
We like our real-world analogues: we read all of the law, but none of the people out there read all of the laws of the land unless and until they have a problem, at which point they do read them. Terms of service are very similar in that people are not going to read them and we should not expect people to read them unless and until they have a problem that requires them to do so. I do not mean that as a counsel of despair, but we have to be realistic about what we are expecting people to do.
Thirdly, the Bill is going to make terms of service longer, and we need to get over that. The challenge is always that you want your terms of service to be comprehensive and easy for users, and as we move in the Bill towards making terms of service more actionable—which we are doing because the Bill says that Ofcom will be able to say, “Did you apply your terms of service properly?”—the lawyers for the platforms are going to be saying “What have we missed out?” and “If there is anything we have missed out, we have to go and stick it in there because now we are going to have a regulator breathing down our neck, checking whether or not we have done what we say”.
We should be realistic that we are asking companies to be entirely comprehensive and transparent, and in general that will mean making their terms of service longer. Again, this is not a complete counsel of despair. We can follow Mark Twain’s advice:
“I didn’t have time to write you a short letter, so I wrote you a long one”
and invest the time. That is what we can do to try to make terms of service shorter, rather than just saying to lawyers, “We will pay you by the word, and the more words there are, the happier we are”. But, again, we should be realistic: if it is comprehensive, it is going to be long; there is no way to avoid that.
The noble Lord, Lord Stevenson, asked whether or not it is a contract—that is an interesting question, certainly for the US providers. In the US the regulation, such that there is, is done largely by the Federal Trade Commission, and the concept is whether or not services
are engaged in unfair or deceptive practices. An unfair or deceptive practice is not doing what you said you would do in the terms of service or a critical document of that nature.
Interestingly, all the incentive in the US is to be as vague as possible because if you have not said that you will do things, you cannot be hauled in front of the FTC. The EU generally creatives incentives to be as comprehensive as possible, and I was involved in a number of cases where the company I worked for was taken to court and forced to add in more text because the US text was seen as too skeletal—that is a familiar debate to us here, whether we like things to be skeletal or for everything to be filled in.
So we need to be cognisant of that as we build terms of service into the Bill. This is not an argument against the amendments, but rather to say that as we do this, we need to be clear that we may be pulling in opposite directions. They need to be comprehensive, yet easy to use. “We are going to hold you accountable in the US; therefore, you should be vague; but we are also going to hold you accountable in the UK if you are too vague”—where is the right point of specificity and vagueness?
Having said that, it is really important that we focus on this because from a user’s point of view you are far more likely to come across an issue with the terms than an issue with the law—this is great, because most people in this country are law-abiding and not seeking to break the law.
The final point is that sometimes there is a tendency to think that everyone should have uniform terms of service. I can see the argument for a baseline, but in a vibrant market there is a strong case to say that we should celebrate where they are different, and there are communities that are different. For example, if you have a service that targets young people you might want to prohibit swearing; whereas, for example, it would be completely inappropriate to prohibit swearing in a vibrant political community for adults only. There are lots of areas where people understand that the context is different. For example, there are places where nudity—not pornography—is okay, and places where it is not.
So having different terms of service for different types of service is healthy, but I also think that Ofcom making sure that people do what they say they do is a reasonably healthy development, as long as we recognise and accept the consequences of that.