The Biggest Lie Ever

…is “I have read and agree to the Terms of Use.” Why is this though? Because as most of us have experienced, one glance at the (often pages long) terms of use of various companies and programs, we’ve seen enough to know that the reasonable thing to do is hit “I Accept” and hope for the best. This seems to be a pretty safe bet, but why do companies make the terms of use so incomprehensible if it’s so important that we “read and accept” them?

When scrutinizing elements of the official style, one must ruminate the dissection of the individual constituents that typify its being…. Did you catch all that? No? That’s because it’s in the official style; the style that most legal prose like terms of use are written in. In more human terms, when looking at what makes up the official style, you need to think about what factors characterize it. There are several telltale devices used by writers of the official style according to Lanham, and examining the activity systems in which these devices are used is crucial to understanding the effectiveness of the text.

Here I’ll discuss Section 11 Disclaimer of Warranties and Damages; Limitation of Liability from NBA.com’s Terms of Use. It’s an example of legal writing that is meant to protect the company and would be intelligible to lawyers fighting for them. However, with an average grade level of about 18 (according to readability-score.com), this text would require readers to have completed six years of college – the time it typically takes to earn a masters degree – to fully comprehend it. The problem is that this level of this writing alienates the majority of the people that would come across it. NBA.com is a widely used website, mostly by basketball fans, and while it’s very possible that many of these fans are lawyers, the vast majority are every-day people who, after glancing at this, would just click “accept” and move on.

            Though confusing they may be, the official style of the text functions in this context. There are several activity systems acting around these terms of service, but for length’s sake we’ll look most closely at the fans or users most likely to come across the terms of use and the National Basketball Association. They serve to protect both the NBA and its customers, and in order to do so, it’s necessary that they’re written in legal terms. If you were to actually take the time to try to go through the terms of use, in particular Section 11, you’d find that the concepts stated aren’t complicated. For example:

THE MATERIALS IN THIS SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE OPERATOR PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OPERATOR PARTIES DO NOT WARRANT OR REPRESENT THAT THE INFORMATION CONTAINED IN THE SITE IS ACCURATE, COMPLETE, CORRECTLY SEQUENCED, RELIABLE OR TIMELY, OR THAT THE SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS AND/OR VIRUSES. YOU SPECIFICALLY ACKNOWLEDGE THAT THE OPERATOR PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OF THE SITE OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU USE THE SITE AT YOUR SOLE RISK.

 This paragraph states that the NBA claims no responsibility for any inaccuracies, incomplete information, errors or viruses on the website. They also disclaim all responsibility for any offensive or illegal conduct of other users of the site. The last sentence is really the most important, but to avoid any confusion or loopholes should a case go to court, they must fully and completely state that they don’t claim responsibility.

However necessary such a style may be, conflict does occur between the average user and the NBA because of the ambiguity and jargon involved. Terms and phrases such as “pursuant to applicable law,” “implied warranties of merchantability,” and “operator parties” make it difficult at best to understand unless you already know what those phrases mean. This is typical of the official style. By writing at a grade level of 18, the NBA has excluded most of the population from being able to understand this. The target audience that the legality of the writing is focused at (lawyers, court system) is the link between the two activity systems because that audience is who would need to understand the text, should problems arise.

            So again, why do companies make the terms of use so incomprehensible if it’s so important that we “read and accept” them? Because they’re not aimed at the average reader. They are written at a grade level of 18 because the people who would actually take the time to read and comprehend them are probably people who have gone to law school, who have the six additional years of education after high school. In this context, the official style functions well. As for the rest of us, we’ll just hope that those lawyers will be able to do their job if problems arise after clicking “I Accept.”

To visit the NBA.com Terms of Use page, click here.

Chelsea Dolan