In keeping with the goal of usable and ethical communication, the following nineteen (19) prescriptive heuristics have been developed by Lawrence’s summer 2017 Technical Communication class. They are adapted from Larson’s spring 2017 class’ evaluative heuristics and the development criteria articulated by the lab’s research assistants, Alexis Scott and Evan Knox. These prescriptive heuristics should act as a rule of thumb and seek to guide designers, developers, UI/UX practitioners, and producers in three areas of EULA development: Formal, Procedural and Substantive (each defined below):
Formal: Formal heuristics prescribe a way that the legal terms should be presented to the user.
- Standardize type conventions throughout document for clarity. A document with inconsistent type conventions can cause exhaustion on the reader’s part. (Jabr 2013) The document should have consistent type conventions in order to improve readability. Levels of headings should be standardized, and long bodies of text should be in serif font, which is easier on the eyes (Weisenmiller). Keep the ratio of all-caps to regular text low. Maintain consistency in the meanings or uses of bold, italicized, or underlined text throughout the document (“Heuristic Evaluations and Expert Reviews”).
- Maintain visual consistency with full site. Users should be able to do things in a familiar, standard, and consistent way (Inostroza 2013); therefore, users should be presented with a EULA that is an extension of the site or app, (i.e. that is not a stand-alone document). The EULA should be consistent with the visual theme of the full site or app, including but not limited to colors, fonts, and visual style (Mitchell 2015).
- Ensure ease of user navigation. With EULAs, users often have to scroll through the document in order to find relevant information. Additionally, users may not be able to quickly identify which section they should search for specific information in. A graphic-based, non-binding directory at the beginning of the document that lists the sections of the document with links for immediate access would help users navigate the terms easily (Passera et al 2017). Use easily-understandable graphics like simple icons. Provide a brief plain-language summary of each section to aid understanding; this should only be a sentence or two.
- Ensure reasonable document length for target user. EULAs and Privacy policies tend to be extensive, lengthy documents that take the average reader an extended period of time to read. WIth the average American’s reading speed being 250 words per minute. EULAs that are over 2,500 words become time consuming and require an extended period of focus from the user (Fielser et al 2016). Additionally, with 17% of users leaving the page for less than 4 seconds and only 4% staying on the page for more than 10 minutes (Nieslen 2008), EULAs should be kept short in word count to ensure users will read the EULA. The EULA should be written in simplistic language to remove extra legal jargon and reduce the word count. The document should only contain sections necessary to inform the user of their legal obligations.
- Use visual aids to enhance user comprehension, where possible. Given that the use of visual aids in contracts contribute to faster and more accurate comprehension compared to plain language (Passera 2017), the user should be presented a EULA that is augmented with diagrams that assist the user in the understanding of the language of the contract (Passera 2017). For instance, include symbols, icons, or pictures that are complementary to the text (Passera 2017).
Procedural: Procedural heuristics prescribe ways in which the consumer and producer should form and memorialize their contract.
- Ensure accessibility of EULA on mobile devices. Present day mobile applications are becoming increasingly pervasive and complex. Small visual displays and mobile interactions introduce a variety of challenges in presentation of information. (Inostroza et al. 2012). Ensure usability to EULA through contrasting EULA link colors to background, an evident hyperlink, clear text size contrast, and link availability in main navigation bar.
- Provide conspicuous and consistent EULA access points. For aesthetic reasons, website designers bury EULAs in nested menu items or at the bottom of the page; users must actively search for the EULA and generally do not have easy and consistent access to the EULA after their initial agreement. An access point to the EULA should be located in a consistent place in the application throughout the consumer’s use (Inostroza et. al 2012). Links to the EULA can be added to the application’s menu bar or under a settings page to allow for constant access to the EULA, but if such a placement is impossible, putting the link in a sidebar, obvious stand-alone link, or similar location would be acceptable (Nielsen 2012).
- Present EULA directly to user. For the sake of enforceability, the user needs to be able to review the EULA before she uses the product (Belmas et al 2007). Before consumer’s affirmative step (explained in Heuristic 5), present EULA in a scrollable window (what the Berkson court calls “scroll wrap”), or at least provide easy access to the EULA (for instance, a link to the EULA page on the website). Users should always be given the option to opt-out or discontinue the service.
- Present user with EULA before signing up for account. Despite presenting the user with the EULA upon initial access of the site, users may not be aware that the agreement applies to members of the site differently than just visitors. Therefore, the EULA should be presented again before a user signs up for an account or purchases/installs software. Present the EULA in a scrollable window (Larson 2016), or provide an obvious link (different color from the rest of the text, underlined, appropriate font size) to the EULA in the window where the user is signing up prior to any affirmative action.
- Obtain user consent to the terms. Given that a EULA is often an enforceable contract, to avoid potential conflict users must understand that they are binding themselves to legally enforceable contracts (Bayley 2009). Obtain consent in a manner that both is legally enforceable and makes it clear to the user that they are entering a contract. This can be done by providing the user with a prompt that they must perform an action (click a box, for example) in the affirmative to acknowledge their understanding and give their consent to the EULA’s terms.
- Allow for the retention of the EULA. In a question of terms in the EULA, or for the use of the EULA in the future, users need to have access to the EULA on their own terms (Inostroza et al 2013). For this reason, it is necessary that the consumer can easily save/print/email herself a copy of the EULA, which would benefit users and producers dealing with a question of terms. Make it available in a separate downloadable PDF or accessible on the website so that users can copy it into a separate file.
- Ensure users are notified about changes made to policies in a timely manner. EULAs often contain clauses that place the burden of staying current on the EULA and its related policies on the user. This practice, however, has been considered illegal in several states (Rodman v. Safeway Inc.). This is especially troublesome when users enter a contract before an EULA update and create ethical dilemmas when these users are not informed until later where can lead to issues of enforceability (Belamas and Larson 37-51). Companies should notify users when changes have been made to the EULA or related policies and ensure that EULA is accepted before use and is easily located in the website/app for future access. For example, apps could send the user a clickwrap style notification if an update has been made to the terms and services to verify the user has been made aware of the change. an email to those users who have an account should be incorporated.
- Allow consumers to delete account and data when terminating. Quite often applications do not have an easy option for users to delete their account. According to the Federal Trade Commission staff, the consumer should be allowed to easily delete her account, as well as all of her information, by the click of a button. Website shouldn’t try to prevent or delay the effective operation of promised cancellation procedures, i.e. they should not engage in practices that make cancellation burdensome for consumers. (FTS 9). The best practice may be to create an easy access to delete their account, but also ask a reason as to why they want to delete their account before terminating.
- Provide access to personal data. Often times, users can be unaware of the ways the information they provide can be used and held, and do not know how to access that information (Fielser et al 2016). Producers need to provide users with access to relevant personal information the producers store about them. Consumers should be able to request copy of all data that producer retains about them. An addendum can be supplemented with an email or a link for users to obtain access to their information.
Substantive: Substantive heuristics prescribe language and terms for the actual agreement.
- Incorporate plain language in EULA. Users have proven to be ambivalent towards terms and conditions of their frequently used applications or services. Researchers have had success in parsing text in order to present information to the user in a more readable way. Website designers could go a long way towards helping by simply including plain language explanations of their terms and intentions. (Fiesler et al. 2016). The best way to convey important information is to make it readable to the average user, or at 7th-8th grade level (“Readability” 2016). Short, unbinding lay summary can be displayed below or above each section of the agreement to offer the user a more comprehensive statement.
- Avoid using gagwrap clauses. Due to the legal issues that arise from the use of gagwrap clauses in contracts (Belmas 2007), any app or site should not include them in their EULAs. Users should be allowed to openly talk about a service or company.
- Ensure users are made aware of unexpected terms in the EULA. Authors of certain sites’ EULAs often believe that users do not read the agreement, and are therefore ambivalent to their content (Fiesler et al. 2016). Terms that are likely to be found unexpected by users (Fiesler et al. 2016) should be either presented toward the beginning of the agreement or appropriately highlighted in the EULA’s body. For example, use font contrast or bolding to highlight unexpected terms.
- Specify ownership rights for UGC (User Generated Content). Many sites on the web are becoming increasingly reliant on user generated content and need to specify the ownership and licensing rights of the content being uploaded by their users. For example, who owns the images uploaded to a site like Instagram and can the platform then license those images to other publishers? The EULA should contain a section addressing ownership over user generated content and covering all potential licensing possibilities to avoid future liability and ambiguity (Clark 2009).
Bayley, Ed. Electronic Frontier Foundation. “The Clicks That Bind: Ways Users “Agree” to Online Terms of Service”. November 2009. Print.
Belmas, Genelle I., and Brian N. Larson. “Clicking away your speech rights: The enforceability of gagwrap licenses.” Communication Law and Policy 12.1 (2007): 37-89.
Clark, Will. “Copyright, Ownership, and Control of User-Generated Content on Social Media Websites.” Kent Law (2009): n. pag. Web.
Crespo, Ana. “Infinite Scrolling Is Probably Not a Good Idea for Your Website.” Humanising Technology Blog. Nomensa, 24 Apr. 2017. Web. 27 June 2017.
DuBay, William H. “The Principles of Readability.” Online Submission (2004).
Fiesler, C., Lampe, C., & Bruckman, A. S. (2016). Reality and Perception of Copyright Terms of Service for Online Content Creation. In Proceedings of the 19th ACM Conference on Computer-Supported Cooperative Work & Social Computing (pp. 1450–1461). San Francisco: Association for Computing Machinery. https://doi.org/http://dx.doi.org/10.1145/2818048.2819931
“Flesch–Kincaid Readability Tests.” Wikipedia, Wikimedia Foundation, 19 June 2017, en.wikipedia.org/wiki/Flesch%E2%80%93Kincaid_readability_tests#Flesch.E2.80.93Kincaid_grade_level. Accessed 28 June 2017.
FTC Federal Trade Commission Division of Enforcement. “Negative Options.” Analysis of Consumer Behavior Online (2009): 1-72. Federal Trade Commission . 09 Jan. 2009. Web. 02 July 2017.
“Heuristic Evaluations and Expert Reviews.” Usability.gov, https://www.usability.gov/how-to-and-tools/methods/heuristic-evaluation.html. Accessed on June 27, 2017.
Inostroza, Rodolfo, Cristian Rusu, Silvana Roncagliolo, and Virginica Rusu. “Usability Heuristics for Touchscreen-based Mobile Devices.” Proceedings of the 2013 Chilean Conference on Human – Computer Interaction – ChileCHI ’13 (2013): n. pag. Web. 27 June 2017.
Jabr, Ferris. “The Reading Brain in the Digital Age: The Science of Paper Versus Screens.” Scientific American, April 11, 2013, https://www.scientificamerican.com/article/reading-paper-screens/. Accessed on July 2, 2017.
Larson, Brian. “Case: Berkson v. Gogo LLC (2015)”. Reullab.gatech.edu. Reullab, 31 Jan. 2016. Web. 27 June 2017.
Newitz, Annalee. “Dangerous Terms: A User’s Guide to EULAs.” Dangerous Terms: A User’s Guide to EULAs. Electronic Frontier Foundation, 16 Nov. 2009. Web. 03 July 2017.
Mitchell, Jay A. “Putting Some Product into Work-Product.” SSRN Electronic Journal(n.d.): n. pag. Web. 27 June 2017.
Nielsen, Norman. “Nielsen Norman Group.” F-Shaped Pattern For Reading Web Content, 17 Apr. 2006, www.nngroup.com/articles/f-shaped-pattern-reading-web-content/. Accessed 27 June 2017.
Nielsen, Jakob. “How Little Do Users Read?” Nielsen Norman Group. Nielsen Norman Group, 6 May 2008. Web. 01 July 2017.
Passera, Stefania, Anne Kankaanranta, and Leena Louhiala-Salminen. “Diagrams in Contracts: Fostering Understanding in Global Business Communication.” IEEE Transactions on Professional Communication 60.2 (2017): 118-46. Web. 27 June 2017.
“Readability.” Clear Language Group. Clear Language Group, 2016. Web. 29 June 2017.
Rodman v. SAFEWAY INC. United States District Court, N.D. California. 10 Dec. 2014. Print.
Rutledge, Karl. “CLIENT ALERT: Zappos and Its Effect on ‘Browsewrap’ Agreements.” Lewis Roca LLP, Aug. 2013,https://www.lrrc.com/Zappos-and-Its-Effect-on-Browsewrap- Agreements-08-05-2013. Accessed on July 2, 2017.
Stein, Joel. “Data Mining: How Companies Now Know Everything About You.” Time.com. Time, 10 Mar. 2011. Web. 27 June 2017.
Vasel, Kathryn. “Read the fine print: 4 ways you sign away your rights.” CNN Money, April 12, 2017, http://money.cnn.com/2017/04/12/pf/consumer-rights-terms-and-contracts/index.html
Weisenmiller, Michael. A Study of the Readability of Online Text. Dissertation, Virginia Polytechnic Institute and State University, 1999.
Georgia Tech students contributing to this research
(Enrolled in LMC 3403 Summer 2017 session)
|Ahmed, Aatif||2nd year, Business major|
|Beatty, Brooke||4th year, Business major|
|Beisel, August||4th year, Business major|
|Berens, Donald||3rd year, Business major|
|Brown, Ellen||4th year, Business Major|
|Lee, Hannah||2nd year, LMC major|
|McLeod, Hayden||4th year, Business major|
|Nichols, Mary Ann||3rd year, Business Major|
|Patel, Shiv||4th year Business major|
|Rathore, Arasha||4th year, Business Major|