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The Need for Clear and Conspicuous Terms of Service: An Interview with Deborah Bosley

By Scott Abel | STC Associate Fellow

In the digital age, change happens quickly. This column features interviews with the movers and shakers—the folks behind new ideas, standards, methods, products, and amazing technologies that are changing the way we live and interact in our modern world. Got questions, suggestions, or feedback? Email them to scottabel@mac.com.

Over the past few decades, technical communication professionals have been at the forefront of publishing innovation. We’ve created useful standards, best practices, and innovative methods for developing, managing, personalizing, and delivering content. Despite our best intentions and disruptive innovations, much of our content still misses the mark. Sometimes, ironically, it’s our language that gets in the way.

In this month’s installment of “Meet the Change Agents,” I interview professional communication strategist, Deborah Bosley, about the need for clear and concise language in technical communication deliverables. Bosley is the author of three books and dozens of articles, and she is a sought-after expert quoted on business television programs and in articles in business publications.

Scott Abel: Deborah, thanks for taking the time to speak with me about language clarity and its importance in professional technical communication. You’ve spent the better part of your career evangelizing the need for improvements to the way organizations communicate, but not everyone knows your work. For our readers who may be unfamiliar, can you tell us a little bit about yourself—who you are, what you do, and why you do it?

Deborah Bosley: Remember John Lennon’s saying: “Life happens while you’re making other plans”? Through a variety of twists and turns, I entered the academic world with a PhD in Rhetoric and Composition 12 years after finishing an MA in English. My focus, even early on, was helping students learn how to write for the world of work, for audiences and contexts far different from their university professors and their classroom. I’ve always had a pragmatic approach to writing (although I was a published poet, so my right brain was also active).

I had good fortune; both becoming a tenured professor of technical writing at UNC Charlotte and creating a thriving business (The Plain Language Group) as a professional communication expert. In both arenas, my mission statement has always been: “People have the right to understand information that affects their lives.”

SA: Why did you decide to focus your professional energy on plain language?

DB: In the early 2000s, I was introduced to the very small (at the time) world of plain language. Obviously, there were a number of crossovers between technical writing and plain language (audience, context, style, rhetorical theory, etc.), but in 2008 when the financial sector crashed, Dodd-Frank and the Consumer Financial Protection Board began to require “clear and conspicuous” language in financial disclosures, and requests for my expertise increased significantly. The opportunity to work with financial documents to improve their ease of reading opened my eyes to the “anthropology” of participating in non-academic environments: assessing rituals, understanding language I wasn’t accustomed to, learning the politics, etc.

Over time, I decided to pursue more interesting work; I couldn’t continue to write jargon-laden, overly complex academic articles read only by people in my field. I believed in my mission statement and felt that I could practice that work more effectively outside the university environment, which led to me leaving academia.

SA: Your passion for plain language shines through in the presentations you give and the workshops you teach. It seems like your passion runs much deeper than making financial documents easier to understand.

DB: You’re right about that, Scott. I retired from the University of North Carolina Charlotte in 2013 to expand my consulting business. For me, advocating for the use of plain language is my living response to my mission statement. My work includes training, research and analysis, communication audits, usability testing, and—of course—revising written content for easier understanding and to meet regulatory requirements for “clear and conspicuous” language.

SA: I absolutely love the phrase, my living response. I think you’re on to something there. It’s an interesting turn of phrase. But I’d wager it’s a challenge to sell your living response as opposed to selling services that help teams successfully adopt plain language as part of their communication strategy. So, that said, who invests in plain language?

DB: My clients have included, among others, Fortune 1,000/500/100 companies (Google, eBay, Bank of America, JPMorgan Chase, Wells Fargo), government agencies (Federal Trade Commission), higher education (the University of California Office of the President, University of North Carolina, GMAT), attorneys (Sidley Austin, LLP; Greater Boston Legal Services), and scores of others.

SA: Plain language is sometimes incorrectly thought of as synonymous with plain (American) English. Sure, it’s true that some plain language projects result in plain (American) English content, but isn’t it also true that plain language is an international movement that’s focused on crafting clear and conspicuous content in any language?

DB: The field of, and emphasis on, plain language is international. Nelson Mandela required that the South African constitution be written in plain language because he believed that people should understand the laws they are to obey.

Currently, the General Data Protection Regulations (GDPR) of the EU is forcing U.S. companies to create plain language privacy policies. Australia, New Zealand, Canada, Great Britain, Mexico, Sweden, and a myriad of other countries require plain language in corporate and government content.

SA: Can you tell our readers about a plain language project of which you are particularly proud?

DB: While I was a board member of the Center for Plain Language, we helped educate legislators and “advocate” for Obama’s Plain Writing Act of 2010, which requires that government agencies use plain language in content intended to explain benefits and services. The Center creates an annual report card on how well or how poorly agencies have met this requirement.

SA: How has your involvement in the field of technical communication prepared you for your career in plain language?

DB: The field of technical writing/communication certainly prepared me for the plain language world, and almost any technical writer seeking to create their own business can make that transition as I did. But regardless if one teaches technical writing or is a professional technical writer, the world of plain language is just one step away.

STC played a big part in both my academic and my consulting life. I was honored to have won STC’s Jay R. Gould Award for Excellence in Teaching Technical Communication, and was an STC member for a dozen years or so.

SA: You’ve been quoted in the business press as someone who “believes that good writing is good business.” What do you mean by that, exactly? And, is there any proof that your beliefs are more than just hunches?

DB: I probably should revise and say I know that good writing is good business. We have several studies showing that clear written communication increases customer trust, improves corporate reputations, decreases call-ins, and increases profits. For example, in an article published in Intercom (Bosley 2014), I discussed the results of usability testing we conducted for TIAA on a letter sent to participants nearing retirement. The original letter caused a surge in negative calls because clients couldn’t understand it. The letter was meant to help them decide how much money to take out of their IRA (an IRS requirement). We conducted usability tests on professors of a certain age. Taking their responses, we revised the letter to be friendlier, more helpful, and less confusing. TIAA reported back to me that the new letter brought 97 percent positive calls and participants brought millions of new dollars into the company (they wouldn’t tell me exactly how much).

A study by professors at Notre Dame determined that corporations that use plain language in shareholder communication increase the money investors bring into their company (Loughran & McDonald 2014).

Another study determined that using plain language improved comprehension of legal documents by 36 percent because readers found the content easier to understand, easier to comply with, strongly preferred, and caused fewer questions and complaints (Masson & Waldron 1994).

More recently, Joseph Kimble, Distinguished Professor Emeritus at WMU Cooley Law School, wrote Writing for Dollars, Writing to Please, which contains a myriad of studies showing the value brought to companies that use plain language.

Recent articles in Forbes (Vitasek 2018), the Wall Street Journal (Francis 2014), Entrepreneur (Marcus 2017), and other publications advocate for the importance of plain language in business.

In 2018, the Edelman Trust Index reported that the number one factor for trust in financial institutions is how easily they could understand Terms and Conditions. It’s a very short step to trust as building customer loyalty, which leads to increased profits and fewer complaints.

SA: You specialize in helping organizations improve the way they communicate by helping them write and speak in plain language. Although those words—plain language—seem fairly straightforward, what is plain language, exactly?

DB: The widely accepted definition of plain language was developed collaboratively by the International Plain Language Federation, which includes the Center for Plain Language in Washington, DC. The definition is as follows:

A communication is in plain language if its wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.

Now back to your original question. Plain language writers, like technical writers, focus on, among other things:

  • The intended audience. What, if anything, can we assume they know? What has been their experience in similar situations?
  • The context in which content will be read. How often have you tried to figure out if you could park somewhere while trying to read the sign driving 10 miles an hour?
  • The “look and feel” of the content. Does the design lend itself to easy reading or scanning? Is our tone helpful and conveys our brand?
  • Where content resides. Is it read online or in print?

Ironically, although we do care about the general reading level of adults (8th-9th grade is the average), having a PhD does not necessarily guarantee that someone would understand complex financial information. We also use a series of 12 to 15 proven writing and design strategies, such as the use of the active voice, to create plain language content. Again, many of these are strategies that technical writers also use.

SA: Plain language initiatives come to life for a variety of reasons. Highly regulated and risk-averse industries—like financial services, insurance, aerospace, life sciences, and healthcare—may adopt plain language in an attempt to maintain compliance with regulations, or to avoid future legal problems.

Can you give us an example of a situation in which regulations, rules, or laws may be the impetus for adopting plain language? What are the rules? Which organizations adopted them? Who are they designed to protect? And what do they require of those charged with producing technical and business information?

DB: There are a myriad of governmental regulatory agencies that require the use of plain language. Such agencies (particularly in the financial sector) that require plain language (or “clear and conspicuous” language) include:

  • The Securities and Exchange Commission (SEC)—Portions of 10k filings.
  • Health Insurance Portability and Accountability Act (HIPAA) of 1996—Privacy policies.
  • The Employee Retirement Income Security Act (ERISA) of 1974—Employee benefits, summary Plan Descriptions.
  • The Consumer Financial Protection Bureau, created by Dodd-Frank.
  • Truth in Lending and Real Estate Settlement Procedures Act (TILA-RESPA)—Combined into one regulation for loan disclosures.
  • Department of Labor—401(k) fee Disclosures in investments.

Perhaps the most wide-ranging new requirements are a result of the General Data Protection Regulation (GDPR) coming from the European Union (EU), which requires that any company doing business in the EU must write its privacy policy in plain language.

This rule affects thousands of businesses, including: Google, Amazon, Facebook, Twitter, Uber, Instagram, Apple, Microsoft, etc. For example, on almost every website today, there’s a notification displayed to let us know that the site saves and uses cookies. That’s a result of the new GDPR rules.

SA: Compliance issues aside, what are some common motivating factors that cause an organization to recognize the need for plain language? What problems are most commonly discovered in technical communication content?

DB: Unfortunately, many companies only adopt plain language practices when the force of regulation is upon them. However, in my decades of experience, the most common problems I have found—whether the sector is technology, health, or finance, and whether from private or public entities—are the following (in no particular order):

  • Assuming the audience knows more than they do (or more than they need to know)
  • Too wordy
  • Too much jargon (business, legal, corporate, agency)
  • Sentences are too long and paragraphs are too dense
  • “Hiding” the main points
  • Making the action unclear
  • Organizing content for writers, not for readers
  • Using too few effective design elements
  • Lacking consistency in terminology
  • Losing a focus on a helpful tone

SA: Humans make a lot of assumptions. Sometimes, we’re right, but more often than not, our assumptions don’t hold true. American comedian Ellen DeGeneres says, “You should never assume because when you assume, you make an ass out of you and me, because that’s how it’s spelled: A-S-S-U-M-E.” This humorous common wisdom holds some truth. In your experience helping organizations improve their communication, do professional writers make assumptions about their audiences that cause them to craft content that is less useful than it could be?

DB: Writers often assume that readers know more than they do. I like to tell writers to “Give people what they need to know, not what you want to tell them.”

When technical writers have to work with SMEs, problems arise, because SMEs often want to tell the customers everything about a particular product. Remember years ago when the IT person would come to your office to fix a computer problem, and would launch into a dissertation on all the intricacies of the computer when all you wanted them to do was fix it? That situation still occurs but in written form.

People don’t have the time or desire to grapple with more information than they absolutely need to perform a task or take action or understand a situation. “Less” almost always is better than “more.” What people want is text that is easy to understand, to know what to do, to feel competent and confident, to trust the sender, and to trust the information. Although, of course, attorneys often get in the way, too, but that’s another problem altogether.

SA: You’ve spent considerable time studying—and working to improve—the language used in terms and conditions (TC) and terms of service (ToS) contracts. This is super important work as it impacts virtually everyone who uses the Web. What are some of the most egregious mistakes organizations make when crafting terms and conditions and related content?

DB: Terms and conditions or terms of service are used in this context as entry ways into websites. Companies are not legally obligated to provide clear language in these types of documents. That’s why almost no one reads them, and we all just click “I Agree.”

The text of these agreements are more often than not dense, full of legal language, and long.

A 2017 Deloitte survey of 2,000 consumers in the United States found that 91 percent of people consent to legal terms and services conditions without reading them. For younger people, ages 18–34, the rate is even higher, with 97 percent agreeing to conditions before reading.” Of the top 75 websites studied, the average length of their privacy policies was 2,514 words and all were filled with jargon, long sentences, and a lack of clarity in general.

To me, the most egregious error is simply thrusting undecipherable language on the public and putting us in a position of “extortion.” You have to agree to gain access, but the text is too difficult to read; therefore, you are agreeing to something you don’t understand.

What it will take is either regula-tions requiring clarity or a lawsuit that forces companies to do the right thing. In my experience, there’s nothing like the force of law to make change.

SA: There’s a movement afoot in some government sectors to require the production of clear and conspicuous content? Like quality content, clear and conspicuous content seems like a difficult term to define. Can you help our readers understand what clear and conspicuous means, and which government organizations (or other entities) are actively seeking to require it? Who benefits from plain language, and how do we know that they do?

DB: Two organizations in particular advocate for plain language: In the United States, the Center for Plain Language (centerforplainlanguage.org) and PLAIN—the Plain Language Association International (https://plainlanguagenetwork.org). PLAIN represents more than 20 countries that have adopted plain language in various entities both public and private, governmental, and non-profits.

Here’s a list of the organizations around the world that are advocating for plain language: https://plainlanguagenetwork.org/plain-language/plain-language-around-the-world/.

In addition, in the United States, plainlanguage.gov is the organization that helps federal agencies meet the Plain Writing Act requirements—that government agencies provide information about benefits and services in plain language.

SA: How can an organization determine whether the content they produce is written in plain language? Are there tools designed to help uncover the problems?

DB: We’ve had a long-running dispute about the efficacy of readability tests, which tell you the grade level of content (whether online or print). Although I think these tests can give us a means of pushing an entity to take seriously the complexity of their prose, they are flawed in many ways.

The best way to determine problems in content creation is to have an expert analyze the original content, but more importantly, to run usability tests with members of the intended audience.

Although there are debates about how many customers you need to interview (one on one) to get feedback, in my experience, 12 people are all that are necessary to uncover most of the issues. After all, if information is written for customers or citizens, the best way to know if the material is effective is to ask the people who have to read it. In fact, it’s crucial that everyone be reminded that we’re not writing just for people, we’re writing for readers.

SA: Where can our readers go to learn more about plain language? Are there books, organizations, or events that can help us learn what we need in order to craft clear and conspicuous plain language content? Can you recommend the best places to start?

DB: I would suggest starting with the Center for Plain Language and PLAIN. In addition, see the Resources section at the end of this article for a few books that will help anyone interested in plain language and clear writing.

SA: Your company, The Plain Language Group, provides a variety of services to technical documentation and product content teams, including training. What should a technical communication team look for in a plain language training program? What are the most important elements of a successful plain language training program?

DB: I’m going to answer that question by giving you an example of the best training program we ever created, which was for TIAA-CREF. The program was successful not just because of the quality of our customized training, but because the company understood what it takes to make a writing program successful.

  • The initiative started at the top from their CMO and head of HR.
  • They meant it. They were serious about wanting to change the entire culture to focus on plain language to help their clients.
  • We built a partnership so that almost everything we did was created in tandem with TIAA.
  • We participated in meetings with stakeholders to determine their needs and concerns.
  • Managers and team leaders had to participate in the courses and even the CMO and head of HR took the first course. They wanted everyone up and down the hierarchy to understand what plain language meant and how to use it.
  • We developed with them a curric-ulum of five training programs that built on skills learned.
  • The program was delivered to more than 1,000 investment advisors in three locations.
  • We delivered a full day of training and then a half day two weeks later to give participants time to practice.
  • We provided email feedback between sessions for any participant.
  • TIAA built writing improvement into their annual evaluations (providing a great incentive to take clear writing seriously).
  • We gave conference presentations together to talk about the success of the program.

Most companies think one day of training is all anyone needs, and often that’s the best we’re allowed to do. Of course, we argue that improving writing requires “practice with feedback over time.” TIAA understood that approach.

So to answer your other question: The issue of finding the best training program also is a function of how much the company is willing to invest (in time, money, and people) to make the training a success.

SA: I want to thank you on behalf of our readers for taking time out of your schedule to help demystify plain language. You’ve been very generous with your time, and I appreciate you sharing your expertise with our members. Thanks!

DB: Scott, thank you for your devotion to improving the quality of content by supporting technical writers, content strategists, and the entire panoply of people who all want to make information more accessible.

References

Bosley, Deborah S. “From Chaos to Clarity: Overcoming Negative Emotional Responses to Financial Information.” Intercom 61.2 (2014): 16–20.

Francis, Theo. “To Be Clear, SEC Reviewers Want Filings in Plain English, Period.” Wall Street Journal, 2014. https://www.wsj.com/articles/to-be-clear-sec-reviewers-want-filings-in-plain-english-period-1410555347.

Loughran, Tim, and McDonald, William. “Regulation and Financial Disclosure: The Impact of Plain English.” Journal of Regulatory Economics. 45.1 (2014): 94–113.

Marcus, Jon. “Why Jargon Is Bad for Your Business—and How To Eliminate It.” Entrepreneur, 2017. https://www.entrepreneur.com/article/296171.

Masson, Michael E. J., and Mary Anne Waldron. “Comprehension of Legal Contracts by Non-Experts: Effectiveness of Plain Language Redrafting.” Applied Cognitive Psychology. 8.1 (1994): 65–85.

Vitasek, Kate. “Plain Language Contracts on the Rise.” Forbes, 2018. https://www.forbes.com/sites/katevitasek/2018/03/19/plain-language-contracts-on-the-rise/#1306c49cfc66.

Resources

“A Plain English Handbook: How to Create Clear SEC Disclosure Documents.” United States Securities and Exchange Commission. https://www.sec.gov/pdf/handbook.pdf.

Cutts, Martin. The Plain English Guide. Oxford University Press: London, UK, 1996.

Garner, Bryan A. Legal Writing in Plain English. University of Chicago Press: Chicago, IL, 2013.

Handley, Ann. Everybody Writes: Your Go-To Guide to Creating Ridiculously Good Content. Wiley and Sons; Hoboken, NJ, 2014.

Kimble, Joseph. Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. Carolina Academic Press: Durham, NC, 2014.

Pinker, Steven. The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century. Penguin Books: New York, NY, 2014.

Redish, Janice (Ginny). Letting Go of the Words: Writing Web Content that Works. Elsevier: New York, NY, 2014.

Siegel, Alan. Simple: Conquering the Crisis of Complexity. Simple Press: New York, NY, 2013.

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