SA mobile operators, like other companies, are obliged to comply with the stipulations of the Consumer Protection Act, section 22 of which requires them to communicate with their customers in plain language, be it in corporate communications or the wording of contracts.

But in a country with as many languages and as broad an educational divide as SA, even defining “plain language” is proving difficult. And in a mobile industry, where terms like “HSPA+,” “LTE” and “UMTS” are used, even in advertising campaigns, operators could find the need to simplify their language particularly tough.

Operators that fail to comply with the plain-language clauses could be fined up to R1m or 10% of their turnover, whichever is the greater amount. Moreover, courts could nullify, or deem as unenforceable, contract clauses not judged to be written in sufficiently simple language.

Section 22 of the act provides what Frances Gordon, co-founder of business communications services firm Simplified, calls a “solid and ambitious definition for plain language”.

“It’s conceptual, not prescriptive, but to paraphrase it says companies must write in a way that an ordinary consumer with minimal experience in a field can understand without undue effort,” she says.

There are a number of important details in this definition. From a mobile operator’s perspective, it means contracts and supporting documentation need to be written in a way that even a customer who hasn’t had a contract before will be able to understand.

Another important aspect concerns the amount of effort required by the customer. “Minimal effort also means that customers shouldn’t need to get documents translated for them. Operators don’t only have to worry about English, but all of the languages spoken by their customers.”

Gordon says most consumer complaints against operators pertain to misunderstandings arising from particular contract clauses. Consumers have previously been required to sign clauses claiming that they have read and understood the contract, but under the Consumer Protection Act this will no longer work as a defence.

Companies can no longer sidestep their obligations by getting customers to sign agreements saying they’ve understood contracts they’ve entered into. “The consumer cannot sign away that right under the act.”

It is the seller’s obligation to ensure that the buyer fully understands their contractual commitments. “Companies have to start drafting legal documents with consumers in mind rather than lawyers,” Gordon says.

“It’s no good having a plain-language version with a ‘terms and conditions apply’ asterisk either,” she says. “The act requires that all information is ‘comprehensive’, so it’s not just about how contracts are phrased, but also about their content. You can’t leave something out. The act also talks to organisation, form and style, so the most important point has to go at the top.”

Also, she says, companies can’t bury substantive information in a page of definitions. Gordon describes the act stipulations as creating a business environment where the seller, rather than the buyer, now needs to beware.

She says challenges remains to complying with the act’s plain-language stipulations. “One person’s plain language isn’t another’s,” she says, suggesting companies will have to test their contracts on customers before applying them.

“On average, simplifying a contact takes three to four months,” says Gordon. “It requires multiple drafts and extensive testing, and despite what many companies seem to think, it’s not a process you can complete in a week.”

And there aren’t yet regulations pertaining to plain language, though plain-language practitioners are pressing the department of trade & industry to correct this.

Gordon says it’s going to take some time, and a few precedent-setting legal battles, for plain-language requirements to be finalised. For now, “there is nothing that tells us how to interpret the act”.

“One interpretation is that you have to communicate in the language in which a person is most comfortable reading,” she says. “If you read the act conceptually, that suggests you would have to communicate in all languages. But companies are sure to fight this. The National Credit Act suggests that communicating in the country’s two dominant languages of each region is sufficient.”

Gordon says companies need to realise that even terms like “liability” can be problematic for some users and that perhaps “responsibility” is a better term. “Even if you’ve been to university, you can’t necessarily read a legal contract. In the US, many health materials are written at grade 5 level. In SA, there isn’t yet a good grasp of the level at which things need to be pitched.” — Craig Wilson, TechCentral