Terms and Conditions of Services: do we all agree?

The next frontier of product design

GDPR has been all the buzz in the media — and your mailbox — during the last few weeks: the new European legislation on data security coming into force on 25 May. Want it or not, we are all personally affected: the apps and sites we use have informed us it’s time to review their renewed terms and conditions or we will be denied access. While applauding the update, does it really leave us with a choice or does it put us in any position of negotiation? Let’s stop for a moment and think: how have we got here and what’s the bigger picture?

The fall of Product Design

Using digital products is intertwined with our daily life — both personal and professional. The price we pay for using these services is becoming more of a subject of discussion: data privacy, how much of our online activity is being surveilled, marketed and how much our digital preferences and choices influence the information we then receive in return. It is a system created and monitored by robustly designed algorithms, which then fundamentally define our thinking, our opinions and eventually: our behavior.

Since the 2016 US elections algorithms influencing user behavior have been seen in a new light and recently were discussed on a new platform:

Mark Zuckerberg’s congressional hearing in April allowed the world to see how great really the divide is between those who understand digital products and their design and development process and those who don’t. Unfortunately, a large number of the US Government belongs to the latter, which may not be their fault, but it will still leave them in the position to take responsibility for regulating it.

So why does it matter that officials and/or their advisors understand product design methodology? Because where we are in product maturity is essential to understand, in order to know where to regulate the process leading up to it.

Algorithms arent the ulitmate evil. They are designed by people — who take part in this product design process: product strategists, service and UX designers, business consultants, product owners, business leads and developers. Ultimately, it is a dead serious product strategy issue more than anything, as it depends on:

• How a product-service functions: what algorithms are created to achieve the goal of the service;
• How it is being designed: who are part of the process, what expertise are invited and how the process is built ;
• What aspects are taken into consideration: short term business interests, development limitations, user interests, long-term effects;
• What principles guide the process itself: solve a problem asap vs what behavior change it may result in;

Design as Business Value

This phenomena is part of a crisis, that has been created over the years by reckless user experience design — or the lack of — , careless product design process architecture and lack of long-term product-service strategy.

Digital products (and services) fundamentally influence our behavior (all type of mobile-device addiction, endless social media engagement) and consequently our thinking, and our opinions.

As product experience strategist and architect, and an advocate of products that are driven by design strategy and make sense on the long run, I have put serious effort into explaining and encouraging business owners, product owners and every project member to put resources into designing for a desired behavior rather than just fulfilling a short-term need.

For years, the main principle in the product design circles was designing for user engagement. It was driven by the idea that the more the user was engaged with our services, the better. This principle resulted in the flood of notifications and other forms of having you back checking your phone every second. This form of reckless engagement-generating features have lead people to settle in various social-misbehaviors and have exposed users to mental disorders.

A new principle, Ethical design, has risen in the past years and is concerned with the long term effects of design driven product decisions resulting in influencing user behavior. It has kickstarted the conversation on these issues and pointed at extreme examples, like the one of Facebook’s On This Day feature and its “Your Year Review” feature, where users were reminded of their deceased children. Ethical design is one, but powerful voice in this busy space keeping an eye out on what if product design goes wrong.

End of the blame-game

So how do we arrive back to Terms and Conditions? In order to use digital/online services — the ones that effect our behavior, preferences, opinions and gives access for companies to our life — starts with the first step in the user journey: a contract signed between both parties: a summary of what they are providing and (ab)using followed by consent from the user side accepting these conditions.

This is a crucial step and has been overlooked greatly. Companies collectively like to hush away any user complaints by saying “it is up to the user what he agrees to, and if he does not like it, he should not” —a statement so dull, worth an article on its own.

How many % of the users do really read these contracts and if they do, comprehend it? We know — from our own example and from research done at the London School of Economics and Political Sciences (LSE) — this number converges to 0. It does not present a concern for users and plays no role in their decision signing up to a service.

Once using the service, comes step two: users wanting to change their preferences in limiting the provider in accessing their data has been given the UX treatment to heavily support the provider side. Subscription to newsletters automatically set to be clicked in, data allowances for services automatically set to be clicked, change of privacy settings hidden under 2 menu levels in the information architecture of the service, customer services impossible to reach (looking at you Spotify, with your so called “direct link to customer service that is a chatbot sending you back to the original link from where you got here).Both of these two steps favor the provider.

They are results of an aggressive, marketing-push approach coming from an ignorant, short-sighted business product strategy.

The aforementioned LSE research “raises concern both over how companies are informing customers through legally complex terms and conditions, and how consumers are approaching the decision over whether or not to give consent, with the report suggesting a two-pronged approach.”

Both business intelligence and user education are to be recognized as challenging subjects to work on. Beyond, to fully make sense, we have to reach back to the idea of a properly built design process.

Built on analogies

When we encounter an experience digitally which we know from our analogue life it is usually modelled after a real experience, and in some good cases it is was even optimised.

When talking about Step 1 on the user journey for using a digital service: we are talking about contract signing.

When in everyday life we, as individuals encounter a situation of signing a contract there are two conditions we have: legal representation and a chance to negotiate terms.

Two key aspects, that do not exist in signing digital Terms of Conditions. To make this a more “user friendly” step (making a long, sturdy, legal text more understandable, potentially applying UX principles) is a step forward, but is not the full solution.

Step 2: creating an easier access to influence our data use: is critical and is on spot (no more hidden menus), but I’d go even a step further: how about integrating the two?

Design-driven products

If a product design process was in place we could be looking at a combination of the two steps together: allowing the user to decide upfront what conditions he can agree to — as part of the “negotiation” of the contract. In return, providers could set up different business models for different user profiles:

• for those who accept all conditions,
• for those who accept some and
• for those who fully want to reserve their privacy

Instead of seeing it as a sacrifice, companies could see the opportunity to build business models around it. Users, who are willing to give up their privacy would be their number one business partners — so the value proposition of product use and benefits would reflect that. On the other hand, privacy-sensitive users would be presented with a different business model. It is a moving scale, business cases could be worked out for the nuances in between and multiple leveles of business-collaborations could be imagined between users and companies.

Instead of companies’ current position of a binary choice of in or out, this could be a healthier approach.

Design the process

In today’s digitally penetrated world one cannot afford to stay offline, but the way service-user relationships are defined has to change.To adapt to this thinking the product design process has to be well prepared. It requires:

• Right design-driven checkpoints and balances — activities that may seem crumblesome and time consuming at first sight for business owners in the process at first,
• Have to be treated as long-term benefits for the business by creating a well-rounded, thought-through service with involvement of users and business owners alike.

This will require:

• Skilled designers — who are not “just” user-minded but also capable of applying their empathy and co-design skills collaborating and involving the client into the process — for real, not just for show;
• Consequently create real trust and atmosphere for long-term collaboration;
• Clients who see the potential in early investment into a more stable long-term strategy and willingness to participate (and see that as a business value).

When this will be in place — and I have hope it will be — , regulatory bodies will have a better understanding which parts of the process they need to keep a close watch on and what kind of limitations and corrections can they apply in order to enable a safe and yet prosperous digital space for both customers and businesses.

Further reads/listens

• IDEO’s *Creative Confidence Series’ ***How to Build a Better Business Through Design** episode on 24 May
• David Schmidt’s elaborating on when design is applied in business
• (dated from 2015, but still a goodie): Kleiner Perkins Caufield & Byers design partner John Maeda and McKinsey’s Hugo Sarrazin about why today’s senior executives must understand design

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