Does your government digital service need terms and conditions?

Obviously I’m not a lawyer: these are just some things I’ve picked up over the years. Talk to a properly qualified legal adviser if you’re not sure about something.

Managing legal risk

Like any type of contract, website terms and conditions are about assigning legal rights and responsibilities and managing risk.

In contract law, a ‘term’ is something you’re contractually required to do — or not do. A condition is a specific type of term. I don’t know why we say ‘terms and conditions’ — we could just say ‘terms’.

If you’re entering into a contractual agreement with the user, you’ve got terms and conditions. A contract can’t exist without them.

If a contract if formed through a website or digital service, the terms and conditions might be defined through the user interface. They might be set out on a separate page with a heading called ‘Terms and conditions’. Or they might be implied — and read into the contract by a court, based on legislation or legal precedent.

There’s no fundamental tension between design and legal priorities here. From a design point of view, you want the user to understand what they’re agreeing to. And from a legal point of view, you want to be able to show that the user knew what they were agreeing to.

So it’s a question of how you go about managing the legal risk — specifically, which web design and legal patterns you use.

When to create service-specific terms and conditions

Most websites have a terms and conditions page, covering things like liability for incorrect information and which country’s laws will govern any legal disputes. Check with your legal adviser — but if your service is on GOV.UK you may not need a terms and conditions page (since these things are covered in the main GOV.UK terms and conditions).

If you don’t need a service-specific terms and conditions page, don’t create one. Ideally the user would get the full picture about what they’re signing up for just from clicking through the service.

That’s not always possible, though. For example you might need to cover something that’s so niche it’s not worth complicating the main flow of the service, because it won’t apply to the majority of users.

Think about online shopping. You’ll be told about the most important terms — product description and price — as you click through the site and make the purchase. But you might need to visit the terms and conditions to find out the details of the returns policy.

What to cover in service-specific terms and conditions

If you’re creating service-specific terms and conditions, you want to focus them on legal risks which are specific to the service.

When drafting a contract, lawyers think a lot like a designer creating a user journey. They identify things that are either likely to go wrong, or would be especially damaging if they did — then find ways to limit those risks .

You’ll obviously need your legal adviser to help to identify those risks. But for example, you might want to consider:

• covering any restrictions or conditions on using the service (if they’re not already obvious)
• setting out in detail what the user is and isn’t allowed to use the service for
• saying that you have to right to refuse an application or withdraw access to the service without notice — and have the right not to give a reason for doing so (for example, if doing so could create a security problem)
• disclaiming or limiting your liability for types of loss not covered by the general GOV.UK terms and conditions (but bear in mind that there may be legal limits on how far you can go with this)
• covering what happens to any fees paid if it turns out the service can’t be provided

Drafting service-specific terms and conditions

For the most part, approach drafting terms and conditions in the same way as you would any other content. Use plain language and cut out any text you don’t need. By simplifying the terms and conditions as much as possible, you’re potentially putting the organisation in a stronger legal position. Less room for misunderstanding means less chance of a legal dispute.

On the other hand, there are some legal terms that don’t have a precise plain English equivalent. These are sometimes called “terms of art”. From a legal point of view, what’s important is how a court will interpret a contract — and those interpretations are influenced by years of case law. So for example, a lawyer might want to include the term ‘reasonable’ without defining it, because they’re relying on a court applying the definition that’s standard in common law.

Sometimes legal language is there to solve a legal problem. For example, a lawyer may want to add a clause setting out what happens if one of the clauses is found not to be enforceable, or saying “we agree that this specific legislation doesn’t apply to this agreement”. This often happens because there’s case law which will influence how a court interprets the agreement.

If there’s a term that seems odd to you, have a conversation with the lawyer so you can understand what legal risks they’re trying to mitigate. That way if you do have to live with some slightly difficult language, at least you know it’s a proportionate response to a real legal risk.

Linking to terms and conditions

Users should be able to access the relevant terms and conditions from anywhere within your services. So link to them from a consistent place — for example, your service footer.

If it’s a transactional service, it’s also worth explicitly directing users to the terms and conditions at the point just before the user commits to the transaction. For GOV.UK services, we recommend putting the link on the ‘Check your answers’ screen.

Image by Terry Kearney. Used under a creative commons licence.