Honest & Clear Communications
Being clear and straight with the public is key to winning their trust and confidence, their business and enabling positive experiences they can share with others.
That means being as clear as possible to daters looking at offers and deciding which services to join. It means setting out the things they need to know about the service, how it works, and the terms that apply to its use in ways people will understand. That includes clarity over who runs the service, how payments are taken, and anywhere membership links across to other services (pooling).
There are Unfair Practices rules and enforcement capability in all jurisdictions. Perhaps the most accessible and relevant terms for many are in the EU Directive on Unfair Commercial Practices. This Directive, dating to 2005, can be found here.
Law makers face challenges in addressing “Fairness”. Generally, laws and those who enforce them focus more on setting out what might be considered unfair and, therefore, open to enforcement action.
The ODA has seen value in guidance from regulators on how to avoid seeming to be unfair in dealing. The advice says:
- Respect your customer’s interests – don’t use terms you wouldn’t like to sign up to yourself
- Avoid ambiguity – ensure that your terms are not open to many different interpretations
- Be open and fair – don’t hide important wording or use ‘small print’ that might surprise or mislead your customer
- Use ordinary words and avoid legal jargon or technical language. Put yourself in the shoes of your customer.
- Consider whether terms describing the contract’s main subject matter and those setting the price are brought to the customer’s attention early enough in the process as well as being easy to understand
- Take particular care with terms that could seem to work against your customer, for example, terms that:
- limit your liability if things go wrong
- transfer risks to your customer that they can’t control
- allow you to make changes to the contract
- allow you to keep deposits and advance payments
- impose financial sanctions on your customer (eg cancellation fees)
- automatically renew your customer’s contract
In June 2018, the UK Competitions and Markets Authority completed a review of the online dating sector and published guidance specific to the sector. These start to set out how the general terms of the EU Directive might effect dating services. The CMA’s list of “Do’s and Don’ts” can be read here.
Few, if any, regulators or jurisdictions seek to treat dating services differently from others when it comes to the principle of auto-renewal which is a recognised and allowable activity. They do, however, look at what might be considered proportionate in individual cases. They may take the view that few people sign up to dating services on a truly ongoing basis; as they might with a telecoms or financial services provider.
Based on this feedback we believe good practice with dating services is that any auto-renewal arrangement that has a term in excess of six months should include a reminder notification two to four weeks before the date at which renewal would take place. Clearly, this “good practice” is superseded in any market where specific rules have been made.
In many markets, and in the European Community in particular, Unfair Practices laws sit alongside ones prohibiting Misleading advertising. In some markets, governments have looked to self-regulation to manage behaviours – with state action as a reserve power.
Based on past work on complaints on dating services some regulatory advice is of note:
- Do not mislead niche market consumers - Consumers often searching for people who share their views and values; do not take advantage of this by implying that websites are only open to specific groups or those with certain interests if they are not.
- Be alert to issues with under-age users - Services for adults should not seem to target children. Alongside this is the advice to have care not to produce advertising that is likely to be particularly attractive to children.
- Have care with sexual imagery and language – Overly sexual imagery and language should not be used in mediums likely to be seen by children. Advertising should feel in context with where it appears. It should not seem likely to surprise and offend.
- Be able to support popularity claims with suitable evidence - Think whether any claim over the success users have in finding partners, or any claim a service makes over the number of users is reasonable and credible.
- Be upfront about costs and be careful when referencing “Completely Free” services - Regulators report complaints about these claims when some functionality is saved for those who are paying subscribers. In these cases, the ads should make clear which features are “free”.
Advertising, marketing, other regulations, and the original ODA Code refer to ensuring people are not misled by omission, exaggeration or by other means. This is a simple question any service can ask of itself as it plans its business model and marketing.
As a general principle, customers should not need to struggle to get a decent understanding of what’s on offer, how it’s paid for, and how their data is used and privacy maintained.
There is a need for Terms and Conditions that address all the duties on operators to disclose relevant information.
It is possible through Google or others to check-out good examples of clear terms and conditions written with the user in mind. Google’s own T&C’s are generally highly regarded and Pinterest is another interesting example.
Before Users make any financial payments, service providers should be clear as to:
- the service offer: what is available free and what additional access or provision exists for those who make payment
- the duration of any services offered for the payment, including any minimum subscription period resulting from the payment
- any element of automatic renewal and how this would happen
- any other key membership conditions or requirements that may affect the User’s decision to enter into some form of membership and contract
- the terms, duration and limitations on any free services it offers to Users and it must make clear if any on-going commitments, including any financial commitments, arise or are applied as a consequence of accepting such an offer.
If a service is targeted at a particular user-base this should be made clear.
Users should be given a good understanding of how the service works. This includes advice on the basis on which users may regularly receive profile alerts and the basis on which these profiles are selected.
Alerts introducing new joiners to a service or others who appear a good match to the user should be clear as to the nature of the alerts. They should not be drafted to appear to come direct from someone and with a seemingly friendly and personal greeting if the message is generated by the service provider.
Services should assume the guidance that applies to advertising generally also apply to messages on the app or service. If operators wish to refer to the scale of membership on a service, they should make sure the number used is a reasonable representation. It could mislead, for example, to include those who joined a service two or more years before and who have been inactive for most or all of that time.
Services should explain any the relationship between the service owner or promoter and any other third party who have a responsibility for managing the service.
Daters should be told in advance of registration, whether membership or use of a service is based on being included in a pool of daters that goes beyond the user base of the service they are being invited to join. Those offering services within some pooled arrangement should explain in clear terms the nature of the arrangements, perceived benefits and any limits or safeguards.
Services based on pooling should have regard to the appropriateness of the pools operated. They should give thought to the reasonable expectations of those joining a site in terms of the profiles and communications they might receive. For example, services that might be extremely “casual” in nature, facilitating encounters of an adult nature should not be pooled with mainstream or other niche services where there would be no expectation of this happening.
User information should include an explanation of the operator’s policy on data use, retention and any profiling needed to help the service deliver for users.
Operators should have easy to use arrangements for removing profiles from public view and the process to follow if a user wants to have their personal data erased.
Services need to be clear with Users as to their policy with regard to retaining profiles on a service after a subscription cancellation has been completed. Users may or may not want their profile retained and should be told this is something for them to decide.
Services should be clear as to their right to terminate a User’s membership or a User’s registration with immediate effect and the grounds on which the operator could invoke such termination. This is an important tool in addressing harm and maintaining trust. It should be under-pinned by guidance for staff on the possible importance of such interventions and of the need to pay attention when users report concerns.
Introducing complexity, delay, or limiting the ways in which cancellation can be achieved might be considered an Unfair Commercial Practice. Users wishing to cancel memberships and/or subscriptions online should not face barriers in doing so.
The advice on how to end a subscription or/and remove a profile should be easy to find, not limited to or submerged in Terms and Conditions. This can be done by integrating this information in a membership toolbar or page where users build, post and amend profiles.
Service providers should process and confirm all cancellation instructions from Users promptly.
Services should provide Contact details for those with responsibility for the site.
ODA Members operating paid-for services must have an accessible and clear refund policy.
Operators should have appropriate and effective arrangements for handling online complaints, queries or other User issues in a timely manner. Remember these issues go beyond the renewal or cancellation of subscriptions.