There are two ways to cheat consumers. One is to simply lie to them. This method is fraught with peril, however. After all, there are still a few laws around that protect consumers from something called “fraud”, which is a fancy word for “lies”. And nobody likes to be called a liar.
And nobody needs to lie. The second method is safer, and just as effective.
Make it so difficult and annoying to exercise your rights as a consumer (or patient, or citizen) that most people will just give up and go away.
Complexity is your friend. Complexity is your ally. Complexity is a blunt force instrument of such potency that entire industries and professions have sprung up from it’s forehead like the children of Zeus: lawyers.
We see it in everything from operating manuals to software to insurance policies to health care agreements to employment contracts to amusement park disclaimers. We see it in the forms you fill out to claim the “benefits” you are entitled to under insurance policies or government funded entitlements. You even see it on every piece of software you run on your computer– the EULA (End User Legal Agreement) which means nothing to almost every person who clicks on “yes, I agree”. They don’t know what they are agreeing to. It doesn’t matter that they don’t know what they are agreeing to. The point is that there is a lot verbiage in there can be roughly translated as “you have no rights whatsoever”.
It’s a good turf on which to choose your battle. You will always have allies among those who believe the common folk should just pull themselves up by their bootstraps, take a course or two in American law, or lay out $15,000 for lawyers. And you have many other allies among similarly interested corporations and government functionaries who know very well that they might be in the wrong but count on the numbing effect to make you go away.
Some companies even ask you to sign employment agreements that are absolutely illegal because they abridge rights that are guaranteed to every employee under state or provincial law. For example, the organization I work for, Christian Horizons, asks employees to agree that any “wrongful dismissal” issues will be settled by an arbitrator appointed by— guess who?– Christian Horizons. In reality, if you were “wrongfully” dismissed, you retain every right to bring your case to the Labour Relations Board of Ontario, no matter what you signed. I’m not worried because I happen to work for a good, ethical organization, but I still disagree with that provision of the employment agreement.
In this province, you cannot sign an agreement giving your employer a right to cheat you.
Why is there no Greenpeace or World Wildlife Federation or Amnesty International for understandability? We are trying to preserve the environment, unusual species, and the ozone. Why doesn’t someone form an organization to protect language from similar exploitation and abuse?
Complexity is more than a strategy to diminish our rights. It is an assault. To be human is to use language. The highest achievements of humanity, of nation, of history, of culture, is expressed in language. The most intimate human feelings, the great principles of morality and ethics, and even our spiritual aspirations are expressed in language. To pervert, twist, and abuse language, is to abuse humanity.
The strategy of these corporate lawyer hucksters is not really to express complex legal and contractual details. The real purpose is to express nothing, and thus, everything. You might have a right, you might not. The agreement might stand up in court, but more likely, it won’t.
Judges are not entirely stupid. Sometimes they say what everyone thinks: nobody reads those things and nobody understands them. Sometimes, however, they will say, “You should have read the agreement carefully.”
Yes, yes: here on page 59, paragraph 113c, section iii, it says that you accept liability for all damage caused by misuse intentional or not, or actions construed as misuse for the purposes of this agreement as specified in section ii, paragraph 78, notwithstanding any non-specified damages resulting from uses construed to be within specified actionable exceptions deemed applicable”.
But most people don’t know that judges will sometimes rule against these agreements. They assume that if they sign some kind of complex agreement, they are bound to observe the terms. Sometimes they are. It doesn’t matter. The lawyers enter the picture, like a long row of fat, disease-ridden can-can dancers, and the performance begins.
You don’t have to get to court, or to any kind of judgment or agreement. You just have to realize that it will cost you enormous sums of money to even make a contest of it.
The solution is quite simple. There should be a law that specifies that all contractual agreements, warranties, and conditions must be written in plain and understandable English. A panel of grade six teachers should be set up to review any questionable documents. This panel should be empowered to declare null and void any agreement that is not understandable by a reasonable person with a reasonable degree of effort. A consideration will be the fact that the average person is inundated with dozens or hundreds of these agreements every year, and can’t possibly spend every waking hour reviewing them all to see if he or she is in full compliance.
Added May 1, 2003:
The RIAA recently sued four students for facilitating the sharing of pirated music files on their university networks. However, as usual, it is reported that they plan to settle out of court. So they are using the potential complexity and inconvenience of court action to club the students into submission, without actually having to prove their case in court.
Wise decision on their part: they might not win. I have yet to read or hear of a single court case like this in which the RIAA actually won a judicial decision saying that copying of music for personal use is illegal.
I thought, at first, that this would be one– but of course! The inevitable out-of-court settlement!