Contribution

From Transparency to Terms, and Back Again: A Legal Design Approach

The information paradigm is the backbone of two important areas of European law: consumer and data protection. It postulates that enhancing the transparency about the fundamental elements of a transaction or a data processing better protects the rights and interests of the individuals involved. However, to read online Terms of Service (ToS) or privacy policy is not always a widespread practice among users (see, for example, Eurobarometer Special 447 on digital platforms, 2016).

Several cognitive studies explain the reasons of such an attitude: ToS and privacy policy are usually long, badly written, and full of legal jargon; at the same time, individuals often suffer from several forms of bias and degrees of illiteracy. Therefore, users may find quite hard to read and fully comprehend the basic conditions of the agreement and/or its legal consequences (such as the identity of the counterparty, the rights and remedies available, the allocation of responsibilities, the fairness of the clauses). Other users, instead, may decide to “click” without reading because of the impossibility to negotiate those terms. Therefore, the current state of implementation of the information duties and bounded rationality are the two main reasons why the information paradigm is failing its policy goal.

My research hypothesis is that smart disclosure mechanisms may help to fix this failure. The paper will show the theoretical background and the preliminary results of the “Awareness by design app”, developed within the project “The Internet of Platforms: an empirical study on private ordering and consumer protection in the sharing economy”. The methodology for this research is based on legal design, an empirical approach that combines behavioural studies, technology and design to solve legal problems. The proposed app will enhance the information users receive from and about the digital platform, thanks to the combination of two different behavioural strategies: labels and ratings. On the one hand, the app will inform the user about the key conditions of the platform’s terms and privacy policies through icons and short texts; on the other hand, the app will provide a score system to rate the quality of the above mentioned legal documents. The research is based on the empirical analysis of a representative set of digital platforms operating at the European level in three different sectors (transportation, accommodation, food) and the app is being tested with real users in the Brussels-Capital Region.

Related Session:

October 11th, 2018
Session III.B. The (R)Evolution of Data Visualisation in Law
16:30-18:15
Sala Strozzi of Natural History Museum of the Department of Earth Sciences, University of Florence