LN: Welcome everyone to the May edition of our Plain English Roundtable series.
So far this year, we’ve been talking about how using plain everyday language at work can make a big difference for your business. We’ve touched on a number of topics related to this including legal contracts written in plain English, how to make your business communications more accessible and inclusive, and we’ve also touched on the various pitfalls to avoid when communicating internationally across cultures. If you’d like to catch up with any of the previous roundtables, you can find the recordings on the Plain English Law YouTube channel.
Today we’re going to get to the crux of what plain language business communication is all about, and to do that, we’ve gathered a truly international group of panellists. And for a change, I’m going to let them introduce themselves. We’ll start with our co-hosts, Trevor and Niamh, and then we’ll go to our special guests, Mandy and Peggy.
TF: Thanks, Lucas. I’m Trevor Fenton. I own a law firm in Edinburgh, Scotland called Plain English Law. The reason I called it “Plain English Law” was because I realised how many people I’ve dealt with over my 15 years of practising law who were absolutely fed up to the teeth with legal documents that they couldn’t understand, that were written in artificially formal terms. It really is one of the biggest pain points for people dealing with lawyers. And I realised that when I write a contract for a client, I’m writing about their business, not mine. So they should understand what’s in there, and their customers should understand what’s in there.
So that’s what Plain English Law is all about, and it’s going very well. And I get to meet people such as Niamh. I’ll hand over to Niamh so she can introduce her business as well.
NK: Thank you so much. Yes, I’m Niamh, I’m the founder of Tigim. Tigim means “I understand” in the Irish language. We are a communication analytics company and we really look at the linguistic level of the language that you’re using to see is it accessible? is it understandable for your audience? We try to work with plain English, make sure that it’s effective, it’s accessible, that it’s really going to drive your business performance forward.
So again, really happy to be here as well. Thanks.
MS: Fabulous, thank you. I’m Mandy Sinclair, and my background is I had 30 odd years of working in large financial services companies in both the finance and the change areas, where I was lucky enough to be involved in a number of really key customer centric programmes where for the first time, in a lot of cases, their companies were trying to put themselves in the shoes of the customers because of a lot of big changes.
About five years ago, I made a complete career change and I retrained as a coach. And I’m now working with individuals and small businesses on a whole wide range of topics. But certainly with small businesses, there’s an awful lot of work to do to keep things really simple and keep things customer focused. So I’m really delighted to be here today talking about this topic.
PH: And good morning from Canada. So yes, with the five hour time difference, I do mean “good morning”. I know it’s good afternoon to many of you.
My name is Peggy Harnock. I’m the founder and social media strategist at The Social Gourmet. We are a boutique social media marketing agency and we’re located in Grimsby, Ontario, Canada. We work exclusively with small businesses, non-profits and community organisations throughout Southern Ontario and across Canada to help them build and grow their online communities.
I started The Social Gourmet back in 2016 with just me, myself and I here in my home office at the time. And we’ve grown over the years into a small team of marketing experts in the areas of written content, graphic content and social media strategy. So that’s what I’ll be bringing to this Roundtable discussion today – the benefits of using plain language from a marketing perspective.
LN: That’s fantastic, thanks everyone for those great introductions.
So to get started I want to pose the first question to Mandy. Mandy, when I was thinking about plain language and the opposite of that, that is, what people often use at work. And I’m guilty of this – sometimes a habit that I fell into was, in order to seem or sound more professional or authoritative or convincing like I’m trying to persuade somebody, I would use complex and formal language, sometimes really jargony language. And I always thought that I did that because I felt it was a lack of confidence I had. From your perspective as a professional coach, is that your perspective? Where do you think, or why do you think people kind of fall into that habit or that trap?
MS: It’s really interesting. I think, certainly in some individual cases that may be the case, especially if you’re in a very technical area and you personally don’t feel confident in that area. But what I see generally, when I’m working with both businesses small and large, is it’s more that they just haven’t thought about it.
They’re so inward looking, focused on their processes, their goals, their financial metrics, you know, their measures of success that they completely forget to put themselves in the shoes of the customers and they don’t even notice they’re using jargon half the time. And when I go in I go: “What does that mean?” And they’re like: “How do you not know?” And I’m like: “Well, I don’t. It’s not my business.”
So I think, on an individual basis, absolutely that could be the case. But generally I find people just don’t give it the time and the space and they’re just too inward looking. They’re quite blinkered in their approach in terms of how they consider what the customer really wants.
LN: So if it’s less of a confidence thing and is it more… Are they being lazy or is it a time management thing? Or is it just that, like you said, that they’re not, they’re just not really giving it enough thought?
MS: Yeah, sorry to interrupt. I think it’s, to me lazy means you know you should do it and you’re not doing it. Whereas in a lot of the cases, they’re just really shocked when you come in and you put yourself in the customer shoes and you maybe ask things, or you say: “What does the customer want out of that interaction?” And maybe what the customer wants is, they just want to know their query’s sorted there and then. What the business wants is they want to pass it from point A to point B and they want to update some systems. The customers don’t care about any of that.
But actually, when you say that to the business and they, they get sometimes really confused by what customers are complaining about. And it’s because you’re coming at it from two different areas. So I find it’s not really deliberate a lot of the time. It’s just that they’ve forgotten to look outside.
LN: And Trevor, do you think that, with your legal perspective, that this kind of blinkered approach to communicating is industry [specific]? Like, do you think this happens more in, for instance, the legal profession?
TF: No, I don’t actually think it, it’s certainly not a special talent. No, I’ve let me rephrase that. It IS a special talent of lawyers to do this a lot, ok, but it’s not a unique talent to lawyers. So, Mandy you brought up your background in financial services and I just recently had to complain to our pension provider because they were sending me statements, pension statements that I don’t understand with words in it like, you know different contributions were referred to as “tranches”. Now listen, who sends documents like that to a consumer that says, tranche one works like this, tranche two works like that. Please.
I couldn’t agree more with Mandy. It’s a lack of putting yourself in somebody else’s shoes. A lack of empathy, frankly, not really thinking through who’s going to use this document and what is their purpose in using it, rather than focusing on my purpose in writing it. And if that’s where you put your focus is on: on the purpose of the person who’s picking the document up and also their background and how do they look at things and how would they phrase things.
If you’re not looking at it that way, then you do start sending out documents full of “tranches”. Or, when it comes to contract documents or anything that a lawyer produces, it’s the same kind of thing.
Yes, there are technical terms that lawyers use to describe certain legal concepts for processes and so on. And there’s a time and a place for those words, maybe when you’re talking to another lawyer, fine. But when you’re talking to your client and when you’re helping your client talk to one of their clients, say through to getting a transaction done, why would you use language like that? They’re not going to use it. They’re probably not going to understand it. They might adopt it because they might feel that it’s necessary because we’re in this legal context. Actually, the legal context is just life. So why don’t we talk in terms that normal people use? Because the law serves them, not the other way around.
LN: Peggy, you had a story, speaking of real life, about your own experience. You mentioned the other day about having some maintenance done at your house and not understanding what the guy was saying.
PH: Yeah, you know I was thinking about that conversation because that, if you don’t mind me saying that conversation was sort of the preparatory conversation for this Roundtable. And two things came out of that. One was when the service provider was here and he was servicing the AC and furnace in our home, which here in Canada we call HVAC system, which stands for heating, ventilation and air conditioning so “HVAC” is just a term that we use to describe that. But when he came upstairs from servicing the furnace and was talking about the part that had seized or that needed to be repaired, he was using the jargon which is commonplace for his industry. But I didn’t understand exactly. I heard “seized” and “furnace” and saw dollar signs obviously, but I didn’t understand exactly what the problem was and if it needed to be fixed now or later. And so I just stopped him and he kind of chuckled and explained it in better terminology, but that was a great example.
And then ironically, what came out of that conversation when I was sharing it with you folks in our preparatory conversation, was Niamh saying that she didn’t know what “HVAC” was. Because in the UK, I guess, that duct system that we take for granted here in Canada that forces the heat and/or the air conditioning, is not universal. And so there’s a term ironically that I used in the preparatory conversation for this Roundtable that not all five of us even understood! So, it was kind of interesting to be stopped and someone saying: “H…? H… what?!” and I was like: “Ah, we don’t all have that duct system, interesting.”
NK: Yes, because we don’t. We don’t all have heat and really we don’t need all of those things.
PH: It speaks to these assumptions, right?
NK: Yeah, and when you’re in a spoken conversation and you can see somebody’s facial expression.
Sometimes people aren’t always willing or able to tell you that: “Wait actually, I don’t understand what you’re saying. Can you explain that a little bit more?” And sometimes we can see that, especially if you’re looking, and especially if you’re somebody that uses empathy and tries to connect with the person you are delivering your message to, or trying to converse with. But you don’t have that in the written word, you know, you don’t have that automatic feedback, so you can’t adapt and adjust depending on your audience.
And especially for organisations, that feedback often comes in the form of complaints. There’s Trevor complaining to his pension provider and customer service. So you’re putting the customer service and the complaints people in between to get the backlash because the people that put the communication out there in the first place are possibly a little bit disconnected from how the customer understands things or how the customer should be spoken to in a way that they can understand.
And just, from a language point of view, we need to understand at least 95% of the words in a communication piece to understand the meaning of it. That’s a high amount of words. So a lot of the times you might be using synonyms and use alternative words to describe something. Instead of “tranche” – it’s just a “segment” or a “part” – part one of your payment. Just using those alternatives can reduce the complexity and just mean that people can understand it.
There’s a really high amount of words that people need to know the meaning of, and when you’re going to communicate with people that English isn’t their first language, that barrier becomes even more. And it’s probably that, what you mentioned Mandy, it’s they’ve either forgotten to look or they don’t notice. And it’s an awareness piece around that as well, not everyone has the awareness that the words they’re using are difficult.
MS: I think a really good example of that was, just thinking of one of the financial services companies I worked for following the credit crunch that happened back in 2008, there was a lot of changes to collections rules. There was a lot of backlash against financial services in terms of how customers were in treated. We did a complete review of all communications – on collection strategies and the number of letters and the length of letters and the complexity of letters – they’d been built up by committees over many years with bits of regulations added in, blaming the lawyers of course Trevor, in terms of what had to be in there. And I remember we pared down the number of letters significantly, we tried to reduce it. But the fight that we had internally to be able to show some of those letters to customers was huge, because we were like: “We need to check the customer understands this” and it met a lot of resistance. It was crazy it, you know.
And of course, when we showed it to customers, the [letters] we thought were really simple, a lot of customers were like: “I have no idea what you’re talking about. I just see that number and I know you’re going to hassle me.” You know, they really didn’t understand what it meant for them and what their options were. And it led a lot of them to not want to talk to us because the letter was so off-putting.
In contrast to that, I worked for an online retail company towards the end and it was routine – there were customers in the building every day showing them the new UX on the website to make sure they liked the journey and they understood it and they could click through it quickly. So I think some industries do really need to shift their mindset on this. I think some are catching up, but some still have a way to go.
LN: Because that’s it, when you talked about the difference between the customer experience, people actively, you know, wanting to be involved in a brand and then others that see the number and just avoid it. I mean, that’s what we’re really getting at, isn’t it – the real effect that confusing complicated language that isn’t empathetic, that isn’t understanding of your customer – that’s the real the effect of it.
TF: And I think it’s probably also born of the fact that most of us, I think most professionals anyway, people who do a lot of writing for a living, I think most of us vastly overestimate the average level of literacy of a typical person in society. And just because somebody can read and read each word and they know the language and they know how to read and write and spell, that doesn’t mean they’ll comprehend complex sentence structures and complex jargon when it’s thrown at them, especially if they’re under stress to begin with.
If the letter they’re getting is unwelcome and you know, if you’re getting a letter from a lawyer or from an insurance company or from a bank, you know there’s a pretty good chance that you’re apprehensive already when you open the envelope in the first place. So, if we don’t realise that and don’t accommodate that, and we have silly rules in our heads that we don’t even realise are there, you know…
When I grew up I remember clearly being told that you never write the way you speak. And of course if you take that approach and you say never write the way you speak, well number one I’m not sure I agree with that, except you know, like I would never write words like “gonna” and “hafta”, you know? Clearly I’m not going to write like that.
But there’s a range. There isn’t, you know, it isn’t one extreme or the other. One extreme being you’re speaking in absolute slang and basically telling jokes at one end, and at the other end you’re doing some kind of Shakespeare performance. There is a middle ground and it’s OK to write things the way that you speak as long as you speak more or less correctly.
LN: There was a post that you had Niamh on LinkedIn that I really liked related to this, and it was about testing your writing and your communications by giving it to your grandmother. And I thought that was great, like: “Does your grandma understand this? Can she relate it back to you and get the point?” I thought that was really good.
NK: Yeah, and that’s even things I used to do. I remember even being told in our science at university and even then it was like: “If your mother or your grandmother cannot understand your big research paper, then it’s not going to be understandable to anybody.”
You always have to be able to explain things in a simple way. If you can’t do it, then maybe you don’t actually know what you’re talking about. And that’s probably why a lot of traditional industries, they just rehash things that have been done before because they don’t know how to change it or don’t feel they can.
I think what Trevor was mentioning there, you can write the way you speak. It might come down to your brand voice and building trust with customers. So when you see your letter from the insurance company, from the bank, from all of these coming in, I know I do, I leave them ‘til the last. If I’m already having a bad day, I’m like, I’m not opening that letter today or that email today, so you know I’m going to leave that. You know, you want them to be building trust, and I think that the companies that are more digitally focused, and maybe Peggy can speak to that, that when you’re more digitally focused there’s a lot more immediate feedback from social media. You know, you’re getting that feedback from comments, whatever, so you’re more connected I think to the customer. And so you’re more willing to adapt and change because you know that feedback cycle is reoccurring a lot more often than in the bricks and mortar kind of traditional industries.
PH: Yeah yeah. And I totally agree, I mean listen. Any good marketing in any fashion is about building trust and on social media it’s about building community. So again, trust building is huge and Mandy mentioned it too when talking about financial services.
A perfect example of that from one of our clients, is an insurance brokerage that we work with and, insurance much like law and financial services, is full of terminology and jargon that a lot of folks don’t necessarily understand. Insurance is what is known as an “all-commerce product”, which basically means if you’re 16 and buying your first car or you’re 90 and retiring to your condo in Florida and everything in between, you need insurance. So it’s literally the type of product that everyone requires and so, from a marketing perspective, that’s very difficult. If your target demographic is *everyone*, that’s a difficult job for someone who’s doing your marketing, whether you’re outsourcing it or doing it in-house. Knowing who that target demographic is and speaking to them is really important.
Two things for this particular client. We’ve built an entire campaign around insurance terminology and educating this client’s followers and clients and potential clients about what all those words and what all those coverages mean when you get that document that you don’t want to open because we all just want to see the bottom line and how much is this going to cost me. But you also should have an understanding of what all those terminologies and all those terms and jargon mean in terms of the coverage that you have. So we’ve built an entire campaign for this particular broker around that, and that builds the trust because you’re educating. We know you’re going to get this document that is confusing, and so here’s the terminology that you’re probably going to see what those words mean, why those coverages are or are not important to you, et cetera. So that builds trust from a marketing perspective. If you are in an industry that has jargon, then take the time to educate.
NK: And if I could just add on to that, when people start to trust in your brand or trust in your business, you’re building loyalty. And one thing that loyalty of consumers brings is actually it makes them less price sensitive. If they’re loyal to your brand, then you’re not in a position that you need to be competing on price, or in that race to the bottom. If you speak to them as individuals, it doesn’t have to be personalised, but you’re making your language accessible across the board from a 16 year old to a 90 year old, you create that loyalty and you’ll have them for longer and potentially be able to charge them prices that don’t put you out of business.
MS: Absolutely. And Niamh, I think there’s a real two-way thing with trust that’s sometimes missed as well. Because I think some businesses almost naturally think the customer is trying to drive them down to that lowest price point and that’s what they want. But actually a lot of the time, while customers may not be able to afford the highest prices, a lot of customers will pay for something if they think they’re getting value. They can actually help the business understand what the value points are that the customer will pay more for, if you listen to the customer and if you ask them. I think sometimes again, when the business assumes they know what the customer wants, they can miss that.
I think you’ve seen a lot of that with the drive to offshore call centres or where LEAN was rolled out everywhere. From a business point of view they saw reduced individual costs. But actually the cost to their relationship with the customer and the cost of complaints and the cost of them acquiring new customers because they couldn’t retain them. You know, a lot of people are going back to a much more kind of one stop shop holistic approach to customer service. Because in the long run it makes more sense and customers probably could have told them that.
LN: And that’s…
PH: Absolutely. Sorry, can I…?
LN: Sorry, go ahead.
PH: (laughing) This is the Roundtable part where we all just jump in! Sorry, I literally just scribbled something that Mandy said, which is that businesses assume they know what the customer wants, which is absolutely true. And the other thing too, I think, is that businesses tend to assume they know who their customers are, and that’s not necessarily the case either.
Again, I’m looking at this through a marketing lens, and I will ironically go back to that same client of ours who is in the insurance industry. When we first started working with this client, we did an audience analysis on his current social platforms and learned, surprisingly to us and to him, that instead of the whole wide world as his marketplace, that 80% of his current social media followers were in fact female or identifying themselves as female on social media. And so, what that meant to us from a marketing perspective, was that we were going to speak differently to his social following. And also too, when you think about it, marketing… We’re talking today about plain language in terms of either the written word or the spoken word, but marketing is also visuals. So knowing exactly who you’re either target demographic or current followers are from a digital and a social media perspective is important because for this client we changed how we spoke, we changed the words that were used, we changed the type of visuals and imagery that we used, which is also communication, because we knew that we were speaking to an 80% or predominantly female audience for this particular business.
So exactly what Mandy said, you know, don’t assume you know what your customer wants, but also don’t assume you know who your customers are. That’s an important piece of the puzzle is to know who it is that you’re speaking to.
LN: And research is a huge part of your business and clearly marketing. Whenever I look at your posts on LinkedIn, you’re always posting case studies about the amount of research that you’ve done to get to understand and help your client understand who they’re dealing with so that you can speak to them in a language they’re going to understand and that they’re going to respond to and connect with.
PH: Yeah, absolutely. And I think that’s where a lot of this misunderstanding comes from in languages, because again, my furnace repair guy was talking to me like a furnace repair guy, which I am not. And so, if I’m an insurance provider or a marketing expert or a lawyer or a doctor – I mean, the doctor could probably tell you you have an ear infection using words that you don’t understand when they should probably just say “You have an ear infection.”
We see this a lot in marketing with folks who are small business owners and are doing their own marketing, which is common. But they speak as if they’re talking to someone else in their office or someone else in their industry as opposed to their customer, potential customer or their audience demographic. So yeah, doing that research, whether you’re outsourcing and hiring to have it done or whether you take it on yourself, doing that research to understand who it is you’re actually speaking to is not only going to build that trust, but again, as Niamh said, when you build trust, you build brand loyalty and that is A) what marketing is all about and B) the point of having a business – building their loyalty so you can build and maintain your business.
MS: I was just going to say, one phrase that I use all the time is “Facts are friends.” And I kind of wish, you know, every client of mine I’d like to get them a mug or a T shirt with “Facts are friends” on it because, so often I’ll hear someone tell me something is true about their business or their customers or their market, and I’ll go: “What are the facts? Where are the numbers? What do you really know?” And often it’s all just opinion. When they do go, as Peggy says, when they do go and do the work and find out what’s really happening, it’s quite different.
TF: Yeah, and one thing that Peggy was just talking about there that triggered in me a thought I’ve been having about the way that we market our business, this law firm. And that is, it’s not just about the language that they hear, sorry that they would use but… think about it this way. If you were trying to attract web searches, right, you’re trying to market your business so people will find you on the web – what kind of content do you put on your website and how is that written? And when we were first putting this law firm together, and even probably still now if you read the website now, you might look at that and think: “OK, I kind of understand what services are provided” and so on. But is this the kind of word wording that you would use yourself if you were looking for what we offer? Because the thing is if someone is searching for a service on Google, they’re going to describe it in their own words. They have to come up with the idea, they have to come up with right “This is my problem” phrase. They’re essentially describing their problem to Google. So: “How would your customer describe, or your potential customer, describe their problem?” not: “How would you describe your product?”
Now if you’re lucky, the two line up. If you’re very lucky, you sell refrigerators and someone is searching for refrigerators, easy enough. But one of the services we offer, for example, is to act as the UK GDPR Representative for companies that don’t have an office in the UK. Good grief, how many Americans would be searching for that in Google? How many Americans even know that that’s a problem they need to solve?
So you know, it’s an empathy issue it but it’s also a trust issue because when you use the same kind of language your customers use then what you’re saying actually resonates with them. You’re speaking their language and they feel essentially closer to you in a way because they form the impression, whether they realise it or not, that you’re actually coming at things from the same angle that they are.
LN: I think Niamh mentioned that as well, that when you start from a place of empathy, it’s the start of building loyalty. Your customers become advocates and it just kind of snowballs and gets bigger from there.
TF: And how complicated language can kill trust, right? So you think about how when you’re selling something or building a relationship with a potential customer or supplier, whoever it is, you’re having a nice conversation, you get to know each other a little bit, they get to know your brand, they get to know the way you talk, and they decide at a certain point they go: “Right. I like these people. I trust these people. I’m going to buy from them.” Then they actually get to the terms and conditions or whatever it is, that sort of the more the formal bit of let’s start doing business together, and suddenly things are written in a totally different voice. And what’s the first thing that happens, especially if that’s coming from an insurance company, from a bank, from someone you owe money to? The first thing that probably occurs to most people is: “What are they trying to pull? What trick is their lawyer trying to pull on me here? Where’s the hook? Where’s the trap?” And that doesn’t happen if they understand the language, if they feel the language you’re using because it’s language they are familiar and comfortable with.
PH: And that has just immediately eroded their trust because, if they get to that point and their thought process is: “What are they trying to pull over on me?” or, you know “Pull the wool over my eyes” in a sense then, the trust, if it was built, has been eroded, right?
TF: Gone.
MS: Trevor, can I ask you a question? So, I received spent a lot of my career in a highly regulated industry where, certainly I think people have been guilty of almost hiding behind the regulations or blaming the regulators. And I know that sometimes people write a little summary and then they put the regulation, but I know you’ve got a bit of a mission to have everything in clear English. Do you think it’s well understood that that’s possible?
TF: Yes and no. And I actually have mixed feelings about: “Here’s the summary, and here’s the full detail” because my gut has always said, if the summary is good enough, why do you need the summary and a full detail? If the summary gives the person everything they need to know to make an informed decision, then what’s the 18 pages of small print after it for?
Turn that around and you say if the 18 pages of small print is actually necessary, it’s phrased in different terms than the summary, do they actually mean the same thing? And if they don’t, if your summary actually has a different nuance, different twists to it unintentionally, or you know probably unintentionally – I don’t think anybody writes these summaries trying to fool people – but you know, it always does leave me a little bit uncomfortable.
Let me give you a great example. I do employment contract templates and I, one of the phrases I always end up putting it in the contract is: “This agreement also acts as the statement of employment particulars.” And people are like, what?! That’s the exact phrasing in the Employment Rights Act, and it’s a mandatory element that every employer has to give their employees a statement of employment particulars. What an awful phrase. But I mean, that’s the way it’s written in the law, so that you’re kind of left with the choice: “Do I use that ugly phrase that nobody in their right mind would ever use or do I rephrase it and then people go a little bit later ‘Oh wait, a second, you never gave me my statement of employment particulars’.”
It can be a bit of a Catch 22 created by the regulations that are drafted in this same kind of overly formal language that I think we would like to avoid.
MS: No, I’ve definitely experienced that. So you know, when you’re having debates about whether this level of detail has to be in there or can you leave it out and have a more simplified thing. And then you get the response: “Well, if you ever want to take it to court then it has to be in there”, but then you end up with, before you know it, you’ve got that 18 page document that nobody really understands, but just in case you ever did the thing that’s 99.999% likely never to happen, it’s there, so the result is nobody understands it.
TF: Yeah, and that’s an ever-present battle. You know, one of the things I tend to tell clients – I almost entirely represent businesses and advise businesses – and I tell them: “Look. Here’s the truth of the matter: you’re not going to court, ok? If you end up in court, you’ve already lost. Think about who this document is really for. If you want me to write it for a judge, I can do that, but two things. First of all, if your customer understands it and if you understand it, give the judge a bit of credit, they’re going to understand it too. The second thing is, writing it for that [reason], for landing on a courtroom table, that’s sort of like a one and a half a million chance that that’s ever going to happen. What happens for the other 499,000 times?”
Who’s reading this document? Who needs to use it? What is their purpose in using it? And I think when a customer and a business are exchanging emails, whatever it is that they’re exchanging, they’re trying to communicate. And I think our role is to try to help them communicate well and to avoid conflict. And one of the surest ways to fuel conflict is if one of them thinks the other one is trying to bamboozle them. So, those are the users of the document mostly and they’re trying to regulate their relationship with it, so let’s make it as easy as possible for them to do that so that they don’t end up, so they could resolve the problem without having to go to the extreme of ending up in court ultimately.
Now I know a lot of lawyers would think that’s a crazy way of approaching it, but frankly, that is what most of our clients are doing. They don’t pull the document out of their desk drawer in three years time and go: “Oh, I don’t understand this, I’m suing.” Nobody does that.
MS: Like you say, you’ve already lost.
TF: Well yeah, exactly. Because nobody is suing anybody over £2000 or £3000. That’s just not happening. Well, they’re certainly not hiring lawyers for it, anyway. They might do a small claim or something and if that happens, OK well fair enough. But in order to avoid that chance of maybe getting sued for a couple thousand pounds, you want to spend thousands more getting a very complex document that might chase half your customers away if they ever actually read it? You can’t avoid all risk in life, and I think that’s what we all have to do is look at what are the benefits of having that extra safety of covering that edge case versus the cost.
PH: If you don’t mind me jumping in and totally outing myself and my business because I love this conversation, because I’m guilty of having this seven page legal document that is part of my contract that I know darn well clients aren’t reading, and summarising it in a one page client agreement which is basically the highlights of what I agree to and what they agree to. And on the one hand I found it works because people read that one but they don’t read the legal jargon. But like you’ve said, if I’m summarising it appropriately then maybe all those extra pages of printer ink or space on someone’s hard drive is also not necessary. So I think there’s an education piece there to that.
And I did that, this is what I’m learning now, I did that because I was under the impression that my one page client agreement that I wrote in normal English would not be legally binding without those extra pages of legal jargon attached to them. So there’s the education piece there, too. There, I learned something.
LN: That’s great, we’re all learning. Every day is a learning day!
I wonder, since we’re just about to wrap up, we’ve talked a lot about how this use of language is kind of a mindset. It can be like, as Mandy said, blinkers that we need to take off. And once we recognise that and understand that using empathy, combined with education, being compassionate and understanding of who your audience is, and doing research is all part of how we, what we do next when we take off those blinkers. There’s something that we can do better.
I wonder before ending, is there anything… What tips can we leave our viewers? So you want to do something differently, you can look at the writing in the contracts you use, you can give it to your grandmother – there’s a good tip! What other tips can we share?
MS: I think for me, I would say there’s a great quote from a company I used to work for, that says: “What gets measured gets attended to.” So what I always say to the small businesses that I’m working with is: “How do you know?” How do you know what your customers are thinking? How do you know what they like and what they don’t like and what’s important to them? So I think as a small business, even as a one man band, have you got some time in your diary every month to find out in some way, whether it’s to collect a bit of research, to call a few long standing customers and ask them. You know, no matter how big your business is, if you don’t put time aside or give someone responsibility or measure everybody on what the customer thinks, it’s going to get lost in the heat of business.
NK: And I think it’s about listening. Listening to the customer voice. We’ve spoken about insurance companies or big large ones, but like you said there can be a one man band and… Recently, a woman I know, she runs a jewellery business and she spent the time to collect and collate all of the feedback, all of the emails that she has been receiving from people to look at, the language that they’re using for me to look at. And often that language and the voice of the customer could also be an inspiration for you from marketing potential, a marketing point of view, because how they’re describing your business, how they’re describing the value that you add to them is probably not the way you looked at it. It’s not, you know, we think we’re selling a service to achieve a goal, but the goal actually does something else for the consumer and it’s the way they describe your business that is actually your business. So I think listening to the voice of the consumer.
PH: Yep, I agree with both, sort of combining both of those, the factual side of things and the consumer side of things. Certainly from a social media perspective, that audience analysis is huge. You need to know who you’re speaking to, and so knowing the age demographic, the gender, the geographic location of where those followers, those social media followers are should have a huge impact on how you speak, and so you know who you are speaking to. And that’s information, listener a marketing agency can help you find it, but FYI that’s information that is freely accessible to you in the back end of your Facebook business suite for Facebook and Instagram. So do that audience analysis. It will pull up a document for you and then you’ll have those facts, like Mandy said, that you can build from.
TF: And I’d also say, don’t forget that most people who read things that you write won’t tell you what they think about it. So, if something that you’ve got on your website or in your terms of business or wherever it is, if it actually repels people, you will often not know that. They will just move on. You might have been that close to a sale and then they go: “Ugh”, and off they go, and you won’t know why they went. You might see in your ecommerce, you might see in your web usage stats a certain number of abandoned baskets, right? And I know that’s the bane of every ecommerce business is baskets that you know people are like: “I’ll have some of that, I’ll have some of that” and then they get abandoned. You usually don’t know why, and I’m not saying that badly written terms and conditions are the reason for it or a badly laid out this or that, but why leave that possibility open?
LN: Great tips, great tips all. Well thank you very much and, look at that: perfect timing. So I think we will end it here because everyone has the rest of their day and week to finish off. And thank you for everyone who joined us today.
Again, if you’d like to catch up on any of our previous roundtables, you can visit the Plain English Law YouTube channel and you will find them there. This one will go up in the next few days, probably early next week, so look out for that and look out for our next one happening soon. And until then, thanks to everyone and we’ll see you next time. Ciao for now.
Host: Trevor Fenton from Plain English Law.
Industry Expert: Gerry Higgins from Communicating Culture.
Moderator: Lucas Nightingale from Plain English Law.
Recording Date: 17 Mar 2022
Recording Length: 00:57:15
LN: Welcome everyone to our March Plain English Roundtable.
In this Roundtable series, we’ve been talking about issues that affect how well companies communicate with their customers and business partners. With the help of industry experts and using real case studies, we’ve been exploring these issues further, outlining strategies for improving business communications, and providing practical take-aways for companies to incorporate into their workflows right now.
Our goal is to make this series a resource for businesses to help them connect with their target market and do business better.
To that end, these Roundtables are being recorded and will be available on-demand on the Plain English Law YouTube channel. You can find a link to our channel on our website.
Please be assured that these recordings will only show the faces of the panellists. The names and profile pics of attendees will be hidden. If you have any questions or privacy concerns about that, please get in touch directly. Again, our contact details can be found on the Plain English Law website.
Our next virtual Roundtable will be in two months’ time. It is scheduled for Thursday 12 May.
In May, we’re going to go back to basics to talk about why some businesses struggle to communicate clearly with their audience. With the help of Social Media Strategist, Peggy Harnock, and Executive Coach, Mandy Sinclair, we’ll be exploring why many business processes end up being a “complexity for complexity’s sake” exercise rather than keeping it simple and speaking plainly. We’ll talk about the common traps that businesses fall into that make connecting with customers more complicated than it needs to be, and offer strategies for uncovering the hidden biases that are putting the brakes on our ability to innovate.
There will be an Eventbrite link on our social media pages posted early next week, so keep an eye out for that and please sign up.
Today’s Roundtable is about CQ. Now, you’ve probably heard of IQ, which is a measure of human intelligence, and maybe even EQ which is all about peoples’ emotional intelligence.
CQ stands for “cultural intelligence” and describes our ability to work with and relate to people of different cultures. How well-developed a brand’s CQ is can affect the level of trust that brand hasdepending on the marketplace. Simply put, cultural intelligence can make the difference between winning a contract in one country and losing it in another.
To lead us through CQ and You, I’ll introduce our panel.
Our usual co-host, Niamh Kelly from Tigim, is unable to join to us today but she sends her greetings from Dublin and wishes everyone a Happy St Patricks Day.
As today’s single host, we have Trevor Fenton. Trevor is a solicitor and the founder of Plain English Law. Plain English Law is a boutique commercial law and data privacy practise, currently based in Dundee, soon to be based in Edinburgh. Welcome and congratulations Trevor!
TF: Thanks very much.
LN: Please also welcome our industry expert guest, Gerry Higgins. Gerry, who is a Fellow of the Royal Institution of Naval Architects, originally trained as a Mechanical Engineer and spent 35 years in the management of technical risk in the maritime industry with the Norwegian Classification Society, DNV.
During that time, his career took him and his family to 9 different countries around the world including Asia, Africa and the Nordics.
It was through managing business units and projects in those very different Countries that Gerry realised the impact that culture has on how companies communicate, negotiate, and build relationships with businesses from different cultures.
Over the past 10 years, Gerry has been working with Universities, Colleges, Ship Owners and individuals to help them better understand Cross cultural working and help them develop their own cultural intelligence. It’s great to have you here, Gerry!
GH: Thank you very much, great to be here.
LN: Fantastic. I think what we’ll do is we’ll start off if you don’t mind with, I’ll launch it with a personal story of cultural intelligence or lack of cultural intelligence. So, 10 years ago we moved to the UK from Canada, and we found ourselves in Liverpool. And we thought OK, we’re here and our nephews are the biggest, back in Canada, they are the biggest Liverpool FC fans and we can’t be here and not get some swag for them.
So we found ourselves in the Liverpool One store when it was a brand new development in Liverpool, and when we were there I was just overwhelmed. I was amazed at how much stuff there was, you know, that was all branded Liverpool FC. And I found myself beside this mountain of shower accessories, these kind of spongy meshy things and use with shower gel and you get it all foamy and it’s great. In Canada, we call these “shower pouffes”. Now, fresh off the boat, I didn’t understand that “poof” means something else in the UK.
But anyway, there I was beside this mountain of shower accessories and I call across the store, forgetting that I’m in this bastion of male macho football culture, and I yell across the store: “Look! Shower pouffes!!” And it was one of these moments – the music stops, everyone looks at me and I’m just like ‘gulp’. It was a bit awkward.
TF: And this is the bit where I translate for the non-British audience what a ‘poof’ is in Britain. It’s a very derogatory term for a gay man, so yelling this in the middle of Liverpool Football Club store is probably not the best.
LN: I should have done my homework, which was kind of what we’re talking about today. I mean what we’re talking about, Gerry, is not so much these awkward moments that you can laugh about later. It’s kind of more serious when this happens with businesses and these gaffes, forget the social awkwardness, can actually lead into some pretty serious business consequences.
GH: Absolutely yeah.
That was a funny story by the way Lucas, well done. Lucas was a bit sensitive about that one. He thought it might not be funny, but it was very good. I’ll be using that in the future. I’m going to steal your material with pride.
But yes, you’re right. The kind of, when people do things like that, as we discussed the kind of do’s and don’ts of our culture. What we’re going to talk about today may be one level above or below that more general sense.
Maybe I could just start off by saying, why are we spending your valuable time on this? And the reality is that everyone everywhere is communicating more and more across cultures. Companies frequently have multicultural teams and those multicultural teams within the company are talking to other multicultural teams within a company. And that company is talking to other companies with multicultural teams, etc.
There’s loads of, more and more cross cultural communication happening in industry and also in our daily lives. I mean we were just saying that the last time I had cross cultural communication was about 3 minutes ago, because Trevor and Lucas are Canadian and I’m from the UK. So we’re communicating cross culturally already.
So why spend time on this?
Culture has an impact on so many things: about how we feel about different things, about different situations, what we regard as being acceptable or not acceptable. If you’re buying toiletries for example. Culture determines things like how do we organise or determine our time even. How do we handle tasks? What do we do in different cultures when we come up against business problems or challenges or difficult situations? How do we deal with them?
And as Lucas said, how do we communicate verbally and nonverbally. Today I’m not going to touch on nonverbal very much, but it’s absolutely another fascinating aspect of culture: how we communicate nonverbally in different cultures. But as Lucas said, maybe today the whole thing is about by knowing a bit more about the cultural preferences of different cultures, we can communicate better, and we can build trust. Trust really is the basis of so many or all of our business dealings, if you like. And so building trust is a real keystone here.
My contention would be that if we understand the cultural preferences… You’ll hear people talking about cultural “differences” and cultural “challenges”, but I think cultural “preferences” is a better way of describing things because different cultures have different preferences. How they like to do things, and we’ll touch on that later on. It’s only a preference. It’s just what you like or you don’t like or the way you like to do something or the way you don’t like to do something. For me, broccoli. I don’t like broccoli. That’s my preference. I’m not a broccoli person. My wife loves broccoli. It doesn’t make either of us a good or a bad person. It’s purely just a preference and that really is the same with cultures. It’s just a preference of the way that we like to do things in our own cultures.
TF: And Gerry is, and also possibly a filter through which you understand. What I hear in Lucas’ story, for example, is the gap between the message you send and the message that gets received on the other side. And some of the chats we’ve have had about culture before, it seemed to me that one of the aspects that that could really help a lot of us who are trying to do business across cultural boundaries is to recognise that difference and how culture is a filter. Our own personal culture is the filter through which we receive information from other people. And maybe can actually alter the message from what was intended when it was sent to what we hear when we receive it. So, can you maybe touch on that a little bit?
GH: Yep, you’re absolutely correct. There’s enough communication issues in business already without needing to or, without trying to remove one more filter if we cannot filter is how culture can as you say modify the message from the sender to the receiver. Did we discuss previously an example of that?
TF: No, I was just thinking, one of the things we were talking about earlier was, business looking for opportunities elsewhere in the world, for example. If we sell down the street we, I guess we assume essentially that we know how it is that people in our immediate area, in our local culture, how they look at the world. We know how to communicate with them, and yet sometimes actually maybe we don’t quite know how to communicate with them because we assume that they’re operating in the same context that we are. And that’s not always true. Whether they’re down the road or across the globe.
I guess it’s a question of, as you said, trust, right? If you’re looking to build, if you are looking to establish new business relationships with people, one of the things that’s going to be critical in determining whether you get that sale or that new relationship established is whether you can build trust.
And so, I was just kind of curious to see how does that… How do we account for those possible cultural differences? Or even to identify them when they aren’t necessarily obvious so that we can sort through how that would affect our approach to working with different people?
GH: OK, since you mentioned trust and about how do you… We know that trust is critical, so how do we build trust? Different cultures build trust in different ways, dramatically different ways.
So, you can have cultures which are, you build trust with someone through the job you do, through the task, through the way that you do a job. So for example, a “task-based” culture would maybe be northern European, say German. That kind of culture would trust you if you do a good job, you do it consistently, you do it reliably – I’ve worked with you, you did a good job and I trust you.
That’s on one end of the spectrum of culture and, on the other end, it’s completely different. It can be just based on relationships, so “relationship-based” – I’ve spent time with you privately, we’ve had drinks, we’ve had dinner, I know your family, I know your family history, I know people who have worked with you and like you, therefore, I trust you.
And that’s an area where you can have lots of, not misunderstandings, but you don’t get the best situation if you don’t handle it properly. So what we’re thinking about is, if we think about the German company going to work in a culture or to do business in a culture which is very relationship-based, say for example Vietnam. They might be tempted to focus very much on the task and just get into the job straight away without realising that in order to build the trust and the relationship we need to spend a lot more time on just building the relationship. Spending time asking questions which I think probably in America, maybe Canada, but certainly in America, are probably illegal to ask. But they will ask questions which are very personal and very in depth. But it’s just a way to build that relationship, to get comfortable, to get to know you and stuff.
One piece of advice I always give to people in that type of scenario is be prepared to spend a lot more time than you expected. Set time aside to build up the relationship before you dive into the nitty gritty of the IT and the finance and the product. Because if you do, it’ll just be met with a blank, a blank stare, sort of thing. I don’t know if that was the thing you were thinking about Trevor?
TF: Yeah, I mean that’s one good example. That’s a new example, I hadn’t thought about it that way. And if the funny thing is, let’s say you reverse that. Let’s say that the Vietnamese person is trying to build a relationship with me. I suspect I would find a lot of those questions really intrusive. If they started asking me about my family and about my personal life and trying to get to know me, I would find that really off-putting unless I understood that’s what they were doing, that’s how they operated.
It’s an interesting problem because I don’t think a lot of us realise how instinctive some of those reactions are when we respond to someone else’s style. I’m sitting there thinking: “This person is really nosey.” And actually, maybe they’re just Vietnamese, right? Whereas they might be thinking: “That guy’s really cold. He’s got no personality, he’s got no pulse.” And it’s actually well, no. I’m doing what makes sense to me.
And then compare that the third example, one of my favourites was a Polish colleague that I had in a company I used to work for. And at one point she told me privately, she said: “You know what, can we just skip the small talk? I can’t stand this. I dread this about dealing with about my colleagues in Scotland.” And then there was a German colleague sitting next to her, she said: “Oh, I know what you mean. We’ve actually write down, before we go into a meeting, we write a little note to ourselves to remind ourselves to speak about the weather for the first five minutes.” She wasn’t even kidding. She said: “Sometimes I’m even looking at my watch wondering have we done enough of this yet? Can we get into the business?” Because that’s their preferences. They just want to go straight for it. And if they do that, we’re kind of off-put because we’re like: “Oh wait a second, where’s the banter we need? We need that first sort of five minutes of banter.” And of course we’re going to banter about, what else, the weather. What else are you going to talk about?
GH: And the reason that the weather is a great topic in Britain is…? I mean we don’t have tornadoes, we don’t have amazing weather, but we do have a lot of weather which changes every five minutes. So, it’s a great topic.
And you’re exactly right Trevor. The whole thing about intercultural communication is being able to see it from the other person’s perspective. And like you said, when you take the German to Vietnam, you also need to think about the Vietnam to the German. You’ve got to worry about the poor Vietnamese guys coming to Germany, walking into a meeting cold without having done the research into what’s important for the Germans. And then you can just picture the scene, it all going off-track before anything has started, before anything got going.
And that’s why we look at these things is because, like you were saying you would feel uneasy, you feel uncomfortable, it’s just all wrong. And it’s not a great basis for building trust.
LN: Sorry to jump in, there’s a comment from Richard and he says: “I think it’s important to do the necessary cultural research before interacting cross-culturally.” which is pretty much what we’re saying, isn’t it? To kind of do some homework?
GH: And I think there’s two groups of homework you can do. One is this kind of stuff which is looking at the big picture of cultures, about what are the preferences of different cultures. And I think you can dive in more specifically when you have a target. So, for example, if I’m travelling to Saudi Arabia tomorrow, I would go into very much into the nitty gritty of do’s and don’ts, acceptable behaviour, what happens if I’m invited to a service or a wedding or funeral or something? You know, all that sort of stuff.
I was going to say Trevor, I’d been in Indonesia about a year or so and I started to interact with a new client, and by this time I’d figured out this whole task-versus-relationship thing. And he was a shipowner in Indonesia and I think I had, I think it was four meetings before, eventually… He kind of knew the company and he knew what we roughly did, but after four meetings he said: “So what is it you want to talk about?” Because for four meetings we just talked about our golf game, his family, my family, it’s so hot here what’s the weather like in Scotland. It’s just that building up of the whole rapport for a relationship basis can be difficult.
We talked about culture and intercultural communication along with it. But I mean, what is a culture? I mean, what makes Canadian culture? And don’t say: those French fries with the cheese and stuff on it!
TF: Ah, poutine! Well I was going to start there yes…
GH: Exactly. But it is, it is.
TF: And Hawaiian pizza, don’t forget. That is a Canadian invention.
GH: So there’s stuff you can say like that, that makes a culture visible and invisible. So they’re visible items like food or dress, traditions, habits and stuff. And then under that invisible or things like opinions, beliefs, assumptions, all that sort of stuff.
There’s loads and loads of definitions of what makes a culture. And you can say it’s a complex pattern of ideas and emotions and observable behaviours and symbols that tend to be expected, reinforced, and rewarded.
Today we’re talking about national cultures, but I mean you, you hear about other cultures: national, professional (lawyers versus doctors versus engineers), and organisational (if you join a law firm from another law firm, it’s got a totally different vibe). And then you’ve got individual cultures as well, in your family, in your culture your individual culture. It doesn’t matter. It’s true for them all: expected, reinforced, rewarded. It’s the way things are done around you.
Now I don’t know if I talk to you Trevor about this one before, but there’s a guy in the States who does a great experiment with an elevator.
TF: An elevator?
GH: You know, a “lift”? Ah, you’ve been in Scotland too long – it’s a lift!
Anyway, what he does is, if you think about going into an office block and there’s an elevator and you’re the first person in. So, you would walk into the elevator; which way do you face and where would you stand?
TF: They face the door and stand more or less in the middle.
GH: Or closer to the buttons, unless you’ve got really long arms.
TF: Yeah, fair enough.
GH: And if you’re second, you would maybe occupy the other corner. If you’re third, the one corner remaining. And which way would you all be facing?
TF: Toward the door, I would think.
GH: Towards the door, yeah. So this guy’s experiment. What he does is he walks in, the doors open, there’s four people there already, he walks in and he doesn’t turn round, he just looks straight ahead. Just looks ahead. Now, if someone did that in an elevator, just off the top of your head, how would you feel?
TF: I don’t think I’d like that very much.
GH: Uneasy, kind of. Ok, so he’s got three levels of this experiment. That’s level 1 where he walks in and just faces straight ahead. Level 2 is he walks in and then he smiles, and that really gets them going. On at least two occasions, we know a woman at the back of the elevator, she’d gone into her handbag, got the phone and called the cops and said: “We’ve got a crazy in the lift. We need help.”
If you think about it, and you’re a lawyer Trevor so I hope you would think about it – he had not broken any laws, but he hadn’t done what was expected, reinforced, and rewarded. And that’s a really simple example, but it shows how powerful, or how people like to do things in any culture, in any situation, so it’s really powerful.
He’s got 3 levels. Number 1 he walks in; number 2 he walks in and smiles; number 3 he pushes the button to gets out but he pushes one level up as well. He then runs up the stairs, and when the doors open he says: “I know you were talking about me.” And then they really phone the cops.
TF: Is there any culture in which it is normal not to turn around and stand facing the door? We need to know this just in case we’re travelling somewhere.
GH: What I would do is, if you want to find that out Trevor, is just walk into an elevator and face straight in, see the reaction.
TF: I’ll find out pretty fast!
GH: It should give you a really clear indication whether you’ve done it right or not.
If you just expand that idea a little bit and think about in Britain, for example, there’s a certain culture, very specific to Britain, when you go into a pub. You act in a pub in a very, very strong cultural way. If you think about a pub compared to outside of a pub in Britain or a bar any other where anyone else. You walk in, you can go to the bar, order a drink, and if there’s somebody beside you, you can start talking to them. Now you would never do that sitting down on a bench in a street or just in a random situation. But in a pub, the culture makes that perfectly acceptable.
So of course, being in Britain you would turn around and say, it doesn’t matter what the weather is like by the way, it can be snowing and blowing at gale force nine, but you’ll turn around and say: “Great weather, eh?” And the other person will say: “Ah yeah.”, and then the conversation will start.
All of these cultural norms are really ingrained in us, in our own cultures. And when we’re in the culture, we understand it, and when we’re outside it, we don’t. So we look at the world through our own cultural lenses, if you like.
So that was a wee bit about why we’re spending time on this. Because it’s so universal. It’s a great skill, it helps us to build up trust, and what is culture.
I don’t know, Trevor, should we do a little exercise for folk?
TF: Sure. What have you got?
GH: OK, this is just to show how things are handled differently in different cultures. For everyone participating, here’s a little cultural ethical dilemma for you. What I would like you to do is imagine that you’re a passenger in a car driven by a close friend, a very close friend, you know, family, relative, partner, whatever. Unfortunately, your friend who’s driving, hits a pedestrian. And you know for sure your friend was driving at 50 in a 30 zone. Other than the two of you, there were no witnesses. Nobody else saw this. Your friend’s lawyer… this is where Trevor starts to get uncomfortable… your friend’s lawyer says that if you testify under oath in court that your friend was only driving 30, it might save him or her from serious consequences.
OK, so you’re in a car driven by a close friend, your friend hit someone, you know he or she was driving at 50 in a 30 zone, nobody else accept you two saw it, and the lawyer says if you testify under oath that he or she was only doing 30 it might save him or her from serious consequences.
So you can guess the next uncomfortable question that is coming, and that is: “Would you lie in court to help your friend?” Given that situation, would you or wouldn’t you? You can put into the chat or just have the idea in your head, it’s OK, I won’t embarrass anyone.
TF: Well, I’d be calling the Law Society to complain against the lawyer for suggesting that I lie in court, but you know that’s quite a separate matter altogether.
GH: Seems fair, seems fair.
So, would you lie in court? The reason I’m asking this question is to connect it to cultures. I’m going to show you a range of cultures, and the higher up means it’s more likely that they would not to testify in favour of their friend. The further down it goes means that they are more likely to testify in favour of their friend in court. So let’s have a look.
On the left you can see we’ve got, I’ve coloured them blue, so we’ve got Switzerland, Germany, Sweden, Norway and the Netherlands. In the middle we’ve got Spain, Italy and India. And on the right we’ve got China, Russia, Indonesia, Venezuela and Korea.
Quite a marked difference, In Korea, Venezuela – you’re talking 30%. That means 70% would lie in court in favour of their friend. In Switzerland, maybe 5% would lie, and they’re probably the Koreans living in Switzerland (joking), but 5% would. I’ve coloured the Chinese, Russians, Indonesian, Venezuela, and Korean red.
So what does it mean? Why? Why would the blues not and why would the reds help their friend?
Yes Richard, it is difficult and you’re under oath in a courtroom.
LN: It’s tricky. It’s not a great situation because you are torn between being truthful, being under oath, and then compromising this relationship which has long term consequences. If you rat out your friend, that’s it for that friendship.
GH: But obviously people in Switzerland don’t feel like that, do they?
TF: I’d be curious to find out from the Swiss and the German, all those the blue countries, I’d be curious to find out what they’re weighing up because I have a feeling that the dilemma is more or less universal. There is going to be a dilemma, almost no matter where you fall on that spectrum, because you will absolutely have that conflict between your, what? On the one hand, it could be a duty to society and rules and so on, and on the other hand, a duty to your friend.
But I think what’s interesting, is how I react when I see that graph at first is I immediately start thinking about ethics, who is more and who is less ethical based on that graph. And it only occurs to me after thinking that is, I’m obviously applying some filters on my own here, interpreting it as an ethical or an unethical response.
GH: The other thing that tends to come into play here as well, especially when I talk to people from China, Russia, Indonesia, Venezuelan, Korea and other countries is, and it might skew this graph a bit actually, is that it depends how much trust you have in the legal system in the country you’re in.
TF: I hadn’t thought about that.
GH: The other thing that crops up quite a lot is, sometimes I let people answer this as “yes”, “no”, or “maybe, it depends”, and quite often it depends on things like do we know if the person was killed, injured, lightly, injured, bruised, offended, you know, where are we on the spectrum of death, sort of thing. So that also can skew the graph, trust in the in the legal system and how bad was it really?
The other thing is, especially in some countries and cultures, it comes up nearly every time, is that there are professionals at this game that can jump in front of cars and, just as the cars coming by you slap your hand on the bonnet, it makes a big loud noise, you fall down, and then it’s a compensation thing. So that can skew things. But the general picture, if you don’t give people this “maybe, it depends”, rather you force them into choosing yes or no, this is the way it goes.
Richard, [your comment about] honour and shame culture. Yes, there is definitely a bit of that. And also whether it’s a rules- based culture where rules are the thing that drives them so everybody is subject to the same rules and they love that consistency, or whether it’s relationships that people feel you need to have a personal relationships with the rules, the rules need to be adaptable and flexible enough that you can understand every given situation. Some of the “maybes” I talked about, they are some of those situations.
So the blue person, they’re the ones that like one rule for everyone, because then it’s consistent, objective, predictable, and therefore, fair. And the person who was treated in this way, the person in court, they says I’ve been treated in a fair way. So that’s the blues, that’s your Swiss, German, blue cultures if you like, very rule-based, rule-obedient cultures.
On the other end of that spectrum we had the reds, that is, I like or I prefer, preference again, a case by case policy, because then I know I can treat everybody in a very unique way, I can have a personal relationship-based approach, I can show discretion, make exceptions, be flexible and therefore I can be fair. And the person thinks I’ve been treated in a fair way.
Both cultures think they’ve been treated fairly using completely different approaches, one very rule-based, and one very relationship-based.
TF: So, one of the morals of the story: if you’ve got a blue-culture person and a red-culture person who are going to get into a car together, just in case there’s an accident let the blue-culture person drive.
GH: That’s one way of doing it. Now that could work.
TF: Because the relationship might not survive it if it was the other way around.
GH: Yeah. There was also a lot of discussion about how close is the relationship, and that’s why I say pick a close personal friend because, once you’re talking to relationship-based cultures, obviously that’s critical. How close is that relationship? How much trust do I have in them?
For the blues, they look at the reds and they think it’s ok doing business with these guys, but I’m not sure if I trust the reds. The reds are thinking, I like working with the blues but when your back is against the wall they’re not there for you, that’s because they don’t value the relationship the way I do.
TF: So I don’t know if I can trust them.
GH: Exactly, I don’t know. So again, it’s a big spectrum, but the conclusions at either end are very similar.
This is one kind of cultural dimension, the rules and the relationships or the tasks and relationships. And there’s lots of different cultural dimensions you can look at. You can’t measure a culture on one dimension, it’s got to be on a few.
Other ones which can create issues, I may have mentioned earlier, is how they approached the time. If you’re in the Middle East and you’ve raised a meeting, and someone turns up one or two hours late, then they will just come in and how are you? how’s your flight? And there’s no issue there. Now, if it was a German? They’re very, very focused on time. Or Swiss or Japanese? Very, very focused on time. Again, they’re getting stressed, getting annoyed, getting frustrated. But if you know this beforehand, it still might annoy you, but at least you’ll understand that this is just a preference of the culture you’re working in.
TF: Now, I wonder how that translates in the Zoom era because I’ve I certainly noticed something. I’ve always thought that, I’d say British and Canadian approaches on time are fairly similar, which is to say much closer to the German end of the spectrum than the Saudi end, but still a little bit forgiving. So if someone is going to be up to five minutes late for a meeting, that’s considered more or less on time. And it’s unusual I would say, in an English-speaking workplace, for someone to get really huffy about that, unless it was only a 15 minute meeting.
But I’ve noticed that forgiveness, both in myself and in people I’m dealing with, has been evaporating since we’ve all gone onto Zoom. So now it’s like, OK we had a meeting at 3:00 o’clock, it’s 3:02, what the hell? I’m sitting here looking at this blank screen! And I wonder that this might not affect the really strict cultures quite so much because they were already strict beforehand for face to face. I think we see it in British culture in the way we’ve responded to the pandemic, and I’d be curious to know in the more time-relaxed cultures, I’d be curious to find out from them if they’ve noticed a shift in behaviour because of Zoom as well.
GH: I think that’s a great point. I think what you say is probably correct that, when you’re when on Zoom, just the mechanics of the process, you know just 5 minutes leeway or that sort of thing, I guess if they were to follow their cultural norms they would miss every single meeting that they’re supposed to be in.
TF: (laughing) They’d be arriving at a half hour Zoom meeting an hour late.
GH: I just wonder how it’s going to work when we revert back to face to face again. Of course nobody knows how many of the habits and ways of working that we’ve picked up and adopted since the pandemic are going to remain and how many are going to be dropped. You know, I’ve got hopes that going to the pub after work will be reinstated as quickly as possible, but other ones, like this thing about flexible hybrid working, I think there’s definitely massive benefits to that. Unless you’re in the commercial property market, of course, in which case you would kind of like everyone to go back to the office, which is reasonable.
The time-thing is one that creates a lot of friction and the thing is we always talk about looking through our own cultural lenses – the main thing to think about is it’s not personal, it’s not an insult, it’s not sleight, it’s just the way that the society prefers to do various things.
We were invited to a wedding in Ghana. We turned up – I was in a suit in 33 degrees in 100% humidity outdoors and my wife was in a long dress – and it was for 2:00 o’clock. And we sat quietly being basted until 4:00 o’clock when one of the other guests turned up, and things never really kicked off till about 6:37 if I remember correctly. And by this time my suit was heading for the dry cleaners, big time. Well, absolutely.
And I was really kicking myself because this is what you do for a living. Why did you not ask somebody? But you know, I fell back into my cultural norms. I got the invitation, it had a time printed on it – I will be there on time or five minutes late at the worst – without thinking, I’m in a different culture, I should really think about checking this out.
I think the guy who just left, Richard, he said exactly the same thing: do your research before you step into a situation. And that was a really good example. I have never forgot that and I’ll never do it again.
In Britain, being fashionably late, 5-10 minutes, is OK, but beyond that. Or turning up ahead of time for an event – that creates chaos! So, time, even within one culture, is quite an issue. But when you look at both ends of the spectrum, the differences are amazing.
LN: There’s a the comment from Peggy. She said, when we’re talking about the Zoom meeting, she said: “Amen. I subscribe to the five minute window for lateness on Zoom.” And she’s included a little Canada flag there, revealing her hand.
GH: And that’s what you say, Trevor. Canada and the UK are kind of aligned on that one.
TF: Right, but I really do think that people are less tolerant – 5 minutes late for a Zoom meeting for a lot of people is starting to be on the verge of feeling rude, and I just don’t think we thought that way. 5 minutes was a perfectly acceptable lateness for an in-person meeting.
Although it is different. It depends on what kind of meeting you’re showing up for and what your status is with the other person. If it’s a co-worker, I think the five minutes under our conception of time, 5 minutes is OK. But if you’re showing up for a sales call, you’re showing up for something like that, absolutely do not be late for that. You’re not going to get that forgiveness usually.
GH: Well, one question I’m asked quite a lot is, do people who are working in international companies, do their cultural preferences change from where they were before they went into an international company? And I don’t think they do, but certain behaviours change.
For example in Indian where you’ve got quite a time-fluid approach, if they join an international company and they realised the rules of the game for that particular element, they will adopt that for their working life. The minute they go home again, they’re back into what’s expected, reinforced, and rewarded, back in their own culture again which is perfectly normal.
Then people say, are people’s cultural preference changing? And I think the answer is no. We can change some of the outside things like time-keeping within office hours and Zoom calls. But the hard core things that make Canadian culture Canadian, and British British, and Japanese Japanese, that I don’t think changes much just because you’ve joined an organisation or joined profession or you’re working internationally.
So it’s worthwhile keeping in mind with some behaviours, I think, people do modify. But way deep down, there are things that I’m going to the grave with.
TF: You might adjust it for the situation, but then grumble about it later. Or privately to one of your fellow Scottish coworkers who’s dealing with a company culture that’s got a head office in another part of the world that has a different approach. Obviously they’re setting the standards, I’ll deal with it, but you’re not going to like it.
LN: You mentioned this before in a previous conversation about how we can look at these things like challenges or problems, like these things that are baked in. But you said something about, it’s how you frame it. Understanding both cultural lenses that you’re both looking through. That it isn’t so much the environment that you find yourself in, it’s the your reaction, you’re being able to adapt to that environment.
TF: Yeah exactly. That’s when I’ve done it successfully. There have been times when I’ve done it well and the times I haven’t done it well. When I’ve been successful it’s because I’ve viewed that culture as being exactly that, it’s the context, and it’s a context in which I’m operating. And if I bring my own context, or if I’m with other people who share that same context, obviously it doesn’t require the same level of effort because we just have that mutual understanding of that context and we understand how each other will react.
But the minute you start throwing in people who are coming from a different context, whether it’s a different national culture or even, to certain extent, class culture even within Britain. For example, mixing groups of people who didn’t grow up together. Or maybe just people who sort of grew up in a in a football culture versus a not going to football culture. Just some of those cultural norms just aren’t there.
And if you are the interloper crossing into the other group, the context has changed. And it’s figuring out OK, what bits of my natural context still apply and which ones don’t? What do I need to learn about and figure out so I know that, when I see reactions from other people, I understand what bits of that reaction are actually their context operating to filter things that I’ve said and things that I’ve done so it lands with them differently.
It’s a terribly challenging thing to do well, especially if you haven’t done the research. And that’s one thing I’d ask you then, Gerry. How do people figure this stuff out? What kind of resources are there for people who aren’t experts in cultural communication, to help themselves?
GH: Well, there’s an absolutely brilliant organisation called Communicating Culture run by a guy called Gerry Higgins.
TF: (laughing) Excellent!
GH: It comes back to the previous comment, by Richard, that you need to do your homework. So the resources are, obviously there’s training available from companies like mine that will give you a generic overview. What we’ve done today, this was a real super quick taster. But the generic overview of cultures and how you can measure them and how you can compare them to one another from the point of view of where you are on that preference spectrum. And that’s a great starting point.
And then as I said, if you know where you’re going, you can focus in on the maybe four cultures that you’re going to be dealing with. So if you’re going to work with them, you’re based in Edinburgh, you’re going to be with a Japanese principal, who then has offices in India and Norway. It’s the interaction between those ones, that’s really interesting.
And so you would dive in a bit deeper into those four and say, Ok we know the generics, we know the general stuff, but let’s look at those four and, using our imagination where do we see the opportunities?
Lucas touched on this – we talk about cultural challenges and difficulties. But the reality is, if you’ve done this homework and learned about cultural preferences, you can use that knowledge as a lever towards improving your business outcomes. So it’s an opportunity.
If you know more than the other guy and you know how this all works and how to build relationships and how to build trust, you can really use it to your commercial advantage. Now it’s not manipulating people and it’s not being devious. It’s just you know more about what’s going on than they do.
TF: You know how to meet them on their turf, basically.
GH: Exactly, yeah. Meet them on their turf and make sure they understand when you do something why you do that. Because it’s not just all one way, it’s not just you finding out about them, it’s them finding out about you.
So number one some basic training, then specific. And then, once you start trading or working internationally, despite what I’ve said about opportunities, challenges will come up because of the specifics of the situation. It’s good to have someone to go back to and say: “Look, we went to India, this happened, we’ve all fallen out, we don’t know why, what’s going on?” It’s that’s another resource that providers that like mine that can help. We’ll say: “Ok, what happened? Explain it to me.” and then we’ll say: “Ah ok, could be that.”
You need to be careful that you don’t make everything about cultural communication because there are jerks in the world that you just can’t get on with. I mean, that’s just nature, right? That’s life. But when you’re in that situation, more than often, it’s got something to do with a cultural element. So that’s how I would suggest you approach it.
And finally, be curious about the culture you’re going to. Want to know more about them. Just be respectful. Learn a few words of the language. I mean, I’ve done that with you guys – I now know about these French fries with cheese and gravy. See, I’ve done my homework.
TF: You still haven’t remembered the word, though!
GH: Poutine?
TF: Right. And it’s quite hilarious when, Vladimir Putin, his name when it’s transliterated into French, is “poutine”. So the first time I ever saw a headline on a French newspaper with “Poutine does blah, blah, blah”, I found it quite hilarious because I’m imagining my French fries and gravy and cheese curds doing all sorts things.
GH: Of the two, I know which one I prefer.
TF: Me too.
LN: Maybe that’s a place to stop before we get ourselves into cultural… speaking of cultural issues.
GH: That’s the problem with that stuff is you can’t stop, that’s the problem.
LN: Well, I’m feeling very Canadian and I’m looking at the time and I apologise if anyone had another meeting, but I think we should wrap it up here. It was great. Thank you. You provided this great taster, Gerry, and it’s really exciting. I just want to dive into it more and learn more about it. So thank you very much for all of your insights.
GH: You’re very welcome. It was fun guys. Thank you.
LN: Thank you to everyone who’s joined us and again the next round table will be in May on the 12th and there will be links to that to sign up probably closer to the day, probably a month away. I will send the links for the on-demand recordings to catch up on.
All right, that’s about it. Thanks again to everyone and we will see you next time. Ciao for now.
LN: OK, so welcome everyone to our first Plain English Roundtable of 2022.
This roundtable series will be looking at plain English communications and what that means for businesses. With the help of industry experts we’ll be discussing specific legal and commercial issues around all types of business communications.
We’ll be including customer case studies and will describe practical tips and tricks for how companies can incorporate plain English into their workflow. We want these Roundtables to be a resource for businesses to help them communicate better with their customers.
To that end, these Roundtables are being recorded and will be available on-demand on the Plain English Law YouTube channel.
Please be reassured that these recordings will only show the faces of the panellists. The names and profile pics of attendees will be hidden. If you have any questions or privacy concerns about that, please send me an email directly. I’ll put my address in the chat window.
So our next virtual Roundtable will be in two months’ time. It is scheduled for Thursday 17 March.
The topic will be the challenges and opportunities of intercultural business communications. The industry guest will be Gerry Higgins, and he’ll be looking at this topic from a global scale bringing in his experiences from an extensive career in international shipping.
And because of the multicultural makeup of businesses in the UK, we’ll also be looking at this topic from a local scale, discussing how companies can take advantage of their internal resources to provide insights on our multicultural marketplace. There will be an Eventbrite link to on our social media pages posted early next week, so keep an eye on that and please sign up.
So for today’s Roundtable, we’ll be talking about the accessibility of business communications. This includes everything from your marketing content to client presentations to legal documents.
Key to accessibility, we’ll also be discussing the assumptions we make about our customers, that is, their ability to receive or not receive the messages we send them. So I’ll be asking our panel: “Do the assumptions we make about our customers actually undermine our efforts to connect with them?”
So with that, I’ll introduce our panel. Panel, if you can give me a wave when I call your name, that would be helpful.
First, our two co-hosts. First we had Niamh Kelly, CEO and founder of Tigim. Tigim is a communication dynamics platform whose mission is to enable companies use language in a more accessible way to benefit both their clients and their brand. Niamh is joining us from Dublin. Welcome!
NK: Thank you.
LN: Next we have Trevor Fenton, who is a solicitor and the founder of Plain English Law. Plain English Law is a boutique commercial law and data privacy practise based in Dundee, Scotland. Welcome Trevor!
TF: Good afternoon.
LN: Our first guest is Carrie Clewes from Chattertons Solicitors. Carrie is an equality and disability rights lawyer who specialises in assisting a wide range of clients who wish to bring claims for discrimination. Carrie deals with many discrimination cases, both in goods and services and in the education sector. And she also supports the disabled community when it comes to accessibility of services. Carrie is joining us from Sheffield today. Welcome, Carrie!
CC: Hello!
LN: And last but not least, our second industry expert is Paul Ulett. For over 30 years, Paul has run companies that have helped businesses be more effective at what they do. As the founder of his current project, Lasting Legacy Planning, as well as being a Master Licensee for the platform HoneyPro, Paul uses plain English to help his clients understand the processes of will-writing and estate-planning. In his own words, Paul is a connector and protector of people, their health and their assets. Paul is joining us from the Lake District, which I believe you’ve just moved to. Congratulations and welcome, Paul!
PU: Thank you very much and hello.
LN: Excellent, alright, so what I’m going to do is – Niamh and Carrie – I’m going to start with you. With your backgrounds, I want you to be our guides on this deep dive into accessible language. So, let’s start off with the questions: “What are we talking about when we speak about accessible language?” and “Who is the audience that we are aiming accessible language at?” Maybe Niamh, you go ahead.
NK: Sure. So, in a really easy way, when we’re talking about “accessibility” in terms of language, it’s are we communicating in a way that everybody can understand or the majority of people can understand?
So for businesses, really there are two types of communications. There’s the external to the public who you hope will become your customers, your potential customers. And then there’s your internal communications as well. So if you just look even at the external – what’s on your website, what’s in your terms and conditions, your data, what you’re trying to sell – are you using language that can be understood by a lot of people?
And one thing that we do, especially if English is your first language, we’re writing at a level that we’re able to understand. But often we forget about the level or the ability of the potential users, the potential readers. In the general population, there are people with dyslexia, people that English isn’t their first language, people who might have different literacy skills. And so on to take on board the idea that not everybody can speak at a high level or read at a high level, it’s just about trying to use more simple terms to explain ideas in order to engage your potential clients and bring them in.
Which can be really good for your business as well because any complexity can really create barriers. And you can potentially lose interest from people and they can go away from your site as well, especially if you’re just talking about the online environment and everything is through written text. So it’s about kind of thinking about them and using language in an easy way that more people can understand.
LN: Is that the same with yourself Carrie? Is this the type, the client profile that you work with?
CC: Absolutely, all those examples. And then just to expand slightly on that, there are other elements as well. So a lot of the work that we do is to do with accessibility, both digitally and verbally and verbal communications. And so it’s not only about English and being plain to those people that understand English, but when you talk about languages and the translations that you must make for the people where English is not their first language. That also comes across to, such as the deaf community and BSL (British Sign Language). BSL is its own language and you have to be able to communicate with people such as the deaf community and have things translated for them.
It’s also like you said, like Niamh said about websites. Are they accessible from a language point of view, but are they actually physically accessible as well? And so people who are blind or have visual impairments – are they accessible to those people? Are they compatible with screen reading technology and things like that? So it’s just taking into account all the different elements of language, both digitally and verbally.
LN: OK, I want you to, can you paint us a picture about what the experience is like for a person who has either a physical or cognitive disability when it comes to apprehending language. So they come across a website that they can’t understand – what is it like for them? What is the feedback you’ve received from clients?
CC: So for a lot of clients, quite often they can’t even get as far as a cookie banner on a website. So they want a service, they Google said service, they get to the website and they use their screen reading technology. Now depending on the cookie banner and how that’s formed, and depending on the website, they may get stuck at a certain point. So if on your website you haven’t got colour differentiation between and different sections, if you can’t tab across so the menu at the top where you see ‘about us’, ‘our people’, ‘contact us’, they may not be able to tab across there. If they reach these barriers and they can’t get as far as even your ‘contact us’ page, not only can they not get the information, but they can’t contact you to get that information either. So there might be a number of businesses and business owners that aren’t getting their clients and the clients can’t get to them because they immediately experience a barrier and they can’t reach the service.
With the deaf community we’ve just implemented signed video because, for a lot of the deaf community, English is not their first language. Their written English might not be to a standard where they feel comfortable emailing, so again they need a way to be able to speak to somebody. That obviously isn’t a phone call, so there’s different platforms where they can have an interpreted conversation and they can use that to speak to that person and gather that information. So it’s just about removing these barriers and thinking that step further, really.
LN: So there’s the component that it’s, I mean, it must be upsetting and a challenge for the person, but also the business itself, it may not know it’s lost a sale, a potential sale, and may not know how to deal with that. Is that the same experience that you’ve had Niamh in terms of feedback?
NK: Yeah, I suppose we don’t work on that scale with the physical things, but with the language. And I think one of the elements there is maybe thinking about the audience and having that empathy towards them. Because especially with the last few years, what we’ve just come through you know, there’s been a lot more, you know, people couldn’t go out, go into retail or they couldn’t just talk to somebody in a shop, you know they had to do things online. People that maybe wouldn’t have done things online before.
Even on websites and things like that, sometimes the ‘contact us’ can be buried. You know, it might not even just be easily across the top. And maybe we’ve all experienced it that you just can’t find information in the website and all it does really is when, if you’re a potential customer, you’re going to lose a customer. But if you already are one, it’s going to annoy them. Brand loyalty as well and reputation can be impacted. So if you’re using lots of words, long sentences, and hiding information because you don’t want people to contact you, you’re really damaging your brand reputation.
There’s a lot of organisations out there that it’s a nightmare to try and get in touch with them. So you see people taking to Twitter or something like that, you know, somebody just, I need to talk to somebody.
So, beyond just how the information is presented, it is really going to turn people away from giving you more money or staying with you as a loyal customer. So I think we’ve all even experienced that and so that’s something that companies should really consider when they’re given instructions as to things on the website.
TF: And one thing that struck me when I was talking to both Carrie and Niamh for the first time was that the same audience can actually, you know, you may want to think about more than one way of communicating with the same audience.
So thinking, for example the, the deaf community. Carrie, you pointed out that for the deaf community, I guess by and large, BSL is the first language not English, and most people who aren’t, who don’t have a lot of contact with the deaf community probably don’t realise that. I certainly didn’t realise that. But that doesn’t mean that in order to communicate with deaf people through a website, you have to focus entirely on BSL and, if you can’t provide that, then give up. You can do that and you can also simplify the written language. Both approaches can help the same people.
LN: When we’re talking about the population that benefits from these accessible strategies, what are we talking about here (in terms of size), like if do we have the numbers or statistics about how many, how big this population is?
CC: So, the deaf community, the last campaign that we did the figure was about 80,000+ deaf community across the country. And like you say, Trevor, there are very different ways. You can also use text relay and things like that. There are different formats. There are so many people, I don’t know the figures between BSL and non- BSL users within the deaf community, but there are different formats for different people, so you can adapt that for the people where English is their first language. And there’s a text-to-talk and a text-to-type format and things like that. There’s relay services, and so you can adapt to that whole community in various different ways.
NK: Yeah, and text-to-speech in that sense is a really powerful thing as well, even for people visually, older customers you know older people there, they might not be able to see especially if they’re on their phone. If you’re trying to read things on your phone it might be difficult as well
So there’s a lot of different elements that you might be thinking about people with certain abilities or disabilities, but bringing in some additional elements could actually benefit a cohort of people that you didn’t even consider beforehand. Maybe you would like to listen to the website rather than read it while you’re walking down the street, things like that.
So there’s a lot of different ways to look at it: How do you communicate your message, your product, your brand, so that it covers more segments of the population rather than cutting them out? Even with dyslexia, it’s like 15% of the population. And then, in the UK there’s a lot of people with weak literacy is 70% as well, people with a lower literacy level. So, the different perspectives could be more wide reaching I think.
LN: From a legal perspective, since we’ve got you here Carrie, you’re the expert. What is the prevalence of cases (of this type) that are coming across your desk? I suppose, have you noticed any peaks and valleys? Are they getting more because of we’ve said about everyone has, all the businesses have had to go online because of the pandemic. And business have been approaching this challenge in a way that a lot of the opportunities are being taken away. You can’t go into a bank branch, for instance, you have to do everything online. So what is the prevalence of discrimination that’s coming across your desk these days?
CC: Enormous, to be honest. Obviously the pandemic has brought with it its own challenges, like you say.
One of the biggest ones that I’ve seen personally was a matter against the (UK) Prime Minister. So I was involved in a case against him for the deaf community because he didn’t have an interpreter for any of his (Covid19) briefings throughout.
LN: Sorry. This was Boris Johnson?!
CC: It is unfortunately, I know. So yeah, we wrote the government legal department because they had failed to put an interpreter on for any of the briefings, so the deaf community is, as we said 80,000+ people at the beginning of the lockdown, didn’t have any of the information that they needed. They didn’t know about the rules they didn’t know about the fines. I had clients that were coming to me that were fined on the spot for being out and about and getting on with their daily lives because they weren’t aware of the rules.
And I would say at the time, and even now it is, it’s life or death, it’s very serious. And they failed to interpret any of that for the whole deaf community, so that was enormous. We had 300 clients approach us quite quickly at my old firm, and that like you say, the community that it affects is far and wide.
We also had a lot of problems with face masks. So, the deaf community going into hospitals and GPs and things, having to wear face masks, they lip read and rely quite heavily on lip reading, and that is obviously taken away. So that’s another form of communication that failed to be amended or adjusted to, and that was quite a big problem.
There was there was so many of them, especially when lockdown happened and there was no deliveries from supermarkets. There were barriers being put up in supermarkets so wheelchairs couldn’t access. One way systems would really affect people and with mobility issues. The pandemic just caused such a plethora of issues for all sorts of communities. Yeah, it’s the most I’ve ever seen in one hit if you like. It was madness.
PU: I think that’s a really valid point, Carrie, about the supermarkets and peoples’ access to things that they would ordinarily have access to. We’ve just moved to the Lake District and one of the retail stores, which I won’t name it, but I’ve noticed that in the fresh food aisle… I used to shop at the same store in Rippon, and now I’ve gone to the same store here in Penrith. There’s a Perspex screen on across all of the fruit and veg. Now if I was a wheelchair user or I had mobility issues, there’s absolutely no way that I would be able to access any of the produce behind those screens. I would have to open the door outwards, and it’s a Perspex screen from floor to ceiling so it’s probably 7 or 8 feet high from the handle, which is a hole in the Perspex higher than it needs to be for somebody that would be in a wheelchair, so there hasn’t been any thought there on how those people are going to access those services.
I actually had a look yesterday morning when I was in the store and there isn’t any signage to say if you need support getting their groceries out. There was nothing. So I think these people in those situations that are clearly being overlooked because they’re not the masses.
CC: Absolutely, we saw so much of that, so much of that through the pandemic. Even with home deliveries. So before any of this happened, there would be people that had their own deliveries because they were clinically vulnerable, they didn’t leave the house, they were agoraphobic, they had mobility issues, they didn’t have support or carers. And when the pandemic happened, everybody and their Grandma went to online delivery and everybody needed those slots. So the people that really needed them, the people that were clinically vulnerable, couldn’t access those slots, they couldn’t get deliveries.
It was about getting to the supermarkets and saying: “No, really. This is a priority. The people that physically can’t get to the store need to be priority, and then second the people who would rather not go to the store because of COVID, fair enough.”
It’s just about thinking forward, who is this affecting and on what level? We had clients that literally had dog food left in the house and they couldn’t get anything else. They had no support, no family, no local stores. It was terrifying to be honest at the outset.
LN: Wow. It’s just case after case. You can understand exactly how it happens with businesses reacting, making knee jerk reactions like: “We have to do this. We have to do these updates and take precautions” but not seeing the big picture or seeing or including everybody in that and asking who is this going to affect? Who is this going to negatively affect?
I think this leads really well into Paul’s story because I think it’s a great example of how Paul was confronted with a situation where he needed to react to, and you changed on the spot, you were able to adapt. I wonder if you could share that story about the presentation you gave?
PU: Yeah, of course. So there was a charity that we were dealing with, or wanted to deal with. It was a prospective client for our will-writing service. I’d had a few verbal conversations and a video call with one of the two founders of this charity, and we’d arranged a particular day to run through the presentation. The presentation was largely a PowerPoint presentation, so it’s audio and visual because I was expecting he and I and two other people to be on the call.
The charity in question is a blind charity and (one of the founders) is a blind racing driver. What happened was, I was expecting one representative from the charity on the call, somebody that had full sight. The chap who is the founder at the other founder who is the blind racing driver appeared on the screen. My immediate reaction was horror because I thought: “How is this going to work? I’ve got a presentation which is a visual presentation. How am I going to present this to somebody that’s blind?”
My second response was to confront the chap who was blind and I actually said to him: “Look, I wasn’t expecting you on the call today but I’m really grateful that you’re here. The presentation that we’re normally going to run through would be a visual presentation on PowerPoint. Now, I understand that you can’t see that PowerPoint, so if it would be OK with you, what I would like to do is each slide that I put up I’ll explain what’s on the slide and I’ll talk through it and I’ll read all of the words on the slides.” And he was quite grateful for that.
So we ran the presentation. It ended up running for about maybe 12 or 15 minutes longer than it usually would. And at the end of the presentation, he actually said that he’d been on several other video calls over the last 18 months during the pandemic, and pretty much 100% at the time he’d been ignored on those calls because people didn’t know what to do. They didn’t know how to approach the subject. And so they just ignored the fact he was even in the meeting. Whereas what I’d done, because I’d made him the focal point of the meeting because everybody else could see and hear what I was doing, he was really appreciative of the fact. And he said: “You know, unbeknownst to you, you’ve done something really powerful for me because, as you were talking, I was able to visualise what was on the slide. So in my mind I could see what everybody else could see with their eyes.”
And that was that was really powerful for me actually because it is something that I’ve never experienced before. I’ve always been pretty good and adaptable to change, but I’ve never been in that situation before. So that was quite a unique situation for me.
It was something that was very much eye opening for me because it was in the middle of a sequence of events. So there was a series of a few weeks where different things happened for different people with diversity or language issues that I’d had to overcome or that I’d had to face. So yeah, that was really quite profound.
TF: Do you know what, Paul? What struck me when I first heard that story from you, there were a couple things that struck me. First, I think you were lucky to have been in this situation where you could recognise what your audience was facing. Because you could see the person, you knew who you were dealing with, they were a colleague right.
It turned a light on for me because it made me realise how often we don’t even know who our audience is. So you’re creating a web page, you’re writing a blog, in my case as a solicitor I’m drafting a contract – a lot of the stuff that I write will end up being used by my clients. It’ll be their terms of business, for example, that they’ll put on their website. And so it’ll be members of the public people I haven’t seen, I don’t know what their capabilities are, that’s my audience. And an experience that you’ve described like, you got an opportunity I guess sort of thrust at you. You were well, not forced to confront it, but a lot of people might have just ignored the problem and just ploughed on and done what they were going to do anyway without accommodating that person’s needs.
Still, I’m looking at this screen here. We’ve got a number of people in this call today, but who else is going to look at this video afterwards? We don’t know what their needs are. And so it’s just about thinking about and empathising for all the various different kinds of audiences that we’re all facing, when we’re trying to get ideas across, whether it’s on a PowerPoint, in a written document, verbally, even what words we choose.
How do we express ourselves to make sure, not so much that I get my message out, I mean, that’s a lot less important than making sure that I understand what’s being received at the other end Because if what’s received at the other end doesn’t work and doesn’t match what I’m trying to tell people, then I haven’t done my job.
PU: Yeah, I couldn’t agree more.
LN: It’s a great story because it doesn’t end there does it? Paul, you said this was part of a sequence of events. That that is was only part of your journey in changing your mindset.
PU: Yeah, do you know what, there was a six or seven week period sequence of events that happened that was really the catalyst of why I’m here now. Because I’ve always just assumed that I was an OK communicator and we do assume this, don’t we? We assume that people are going to see and hear what I see and hear, but that’s absolutely not the case.
Another example would be in my other business. One of our networking groups which was male dominant, and we all understand the complexities of what that brings. So we wanted to make the group more gender diverse. We had a conversation with the guys in the room saying look we don’t want to have a boys club. Do we want to have more females present in the room which would make the group better in the whole sense of the being. So naively, what I’d done is I’d asked some females that were part of another group in my network if they would like to come along to the meeting that we were having so we could have a more of a female presence in the room.
I was very innocent in doing this. But after I had a physical meeting with two of the three ladies that I’d asked and I asked them, I said: “Oh, you know, the event’s been and gone. Why were you not able to come?” And the response that I got was: “Well, it was really nice to be asked, but what you asked was the wrong question. That’s why we didn’t come.” And I was like: “Why was it the wrong question?” And they said: “If you’d have asked for an accountant and a travel agent and a mortgage broker to come along, we probably would have jumped at the chance. But you asked us to come along because we were women, not because we were good at what we did, and that was quite offensive.” I said: “You know what, I didn’t think of it that way.” And she said: “It would be a little bit like me asking you to come to event because we needed a little bit of colour in the room. It might not be offensive, but it’s kind of the same thing.” And so I thought about it and I was like: “Do you know what, I’m actually so sorry that I overlooked that.” And so I apologised.
What this series of events are making me do is making me look at our communication, not as the deliverers of the communication, but we’re now thinking about what we do and how are other people going to construe our messages? How are they going to think and feel about it?
And that’s having a really big effect on what we do across the businesses and how we do our marketing, how are people going to receive the messages that we’re putting out, or can they even receive the messages? That’s the more important thing, isn’t it: is somebody going to hear what I’m saying or are they going to hear what they want to hear or their version of what was said.
It’s something that I’ve never thought of before and I’ve been 30 years in business and I’ve never really thought about communication in that way before.
TF: The alternative is, they don’t understand so they just tune you out. That’s another possible problem.
PU: Yeah, they do. So in the middle of all of this is where I met Carrie and the conversation that we had about it. And I think because of these situations that had been occurring and that we’d had to overcome and think about, at the same time there was there was a another chap contacting me via a message on a social media platform and he was being quite insistent. He’d been asking for feedback regularly, but he only wanted feedback by text. And I kind of felt I was being blinkered because I didn’t view it as being important so I didn’t really do anything with it. I thought I’ll do it when I’m ready to do it. But then, because of these other events that had been going on in the background, I was looking at his communication and I started thinking: “OK. Flipping it on its head, why would somebody want to only communicate with me by email?”
So I went back to the person that introduced me to that person and I said: “Why would that person only want to communicate with me by email?” And they said: “It’s because Gary is deaf. He wouldn’t be comfortable doing a video call and he just can’t do a telephone call.”
Long story short, Gary now works for us. He works with my organisation now. We went out of our way to recruit Gary and now Gary is doing a great job. Gary is one of our liaison people who introduces us to charities. Gary’s fantastic.
So I think, just thinking about things in a different way and thinking about other people first, it’s proving to be a much better way to conduct business for me.
LN: And what kind of feedback have you received? Because you’ve seen both sides of this: the guy in the audience who with the visual impairment, and now Gary your new employee. What kind of feedback are you getting from your customers now with Gary working with them for instance?
PU: The funny thing is, so there’s a couple of organisations that Gary has introduced us to that we previously tried to communicate with and for whatever reason we weren’t being responded to. But because we’ve taken on a totally different dynamic and a totally different way to try and communicate with that customer for a different reason, we’ve now had two meetings with companies that we’ve previously tried to have meetings with before that wouldn’t hear it. They weren’t hearing our message. But now through Gary, they’re hearing a different message with a with a different, not a different voice, but a different mode of communication. So the feedback from him is he’s absolutely ecstatic.
Now Gary, and I’m sure he wouldn’t mind me saying, not that anybody knows who Gary is, but Gary is having a bit of a tough time at the moment. You know, through the pandemic, his employment had changed, his mental state wasn’t amazing, he was finding it difficult to find work. And here he is now with working with a company that’s embracing his, I don’t even want to call it a disability because it isn’t, he just has a hearing impairment. Now Gary is knocking it out of the park because he’s so enthused because he’s got something that he feels valued for. He can’t get enough!
He messaged me last week and said: “Would you have a problem if I worked for you and I was in Spain?” And I was like: “Why would you want to work for us in Spain?” And he was like: “Well, every year I go to Spain for four weeks for a break, but would you mind if I still did some work in Spain?” And I was like: “Gary, you can do work wherever you want, but don’t work while you’re on holiday.” And he was like: “No, but I really love it.” So he’s going to go and work while he’s away, not back to the 1st of March. So I said: “Look. If you want to do it, that’s totally your call. That’s not your prerogative and I’m not asking you to.” And he’s like: “No, I really want to.”
So, it’s totally different. I’ve gone from an environment of trying to get people to do more better work to people wanting to do work. It’s a totally different dynamic that I’m finding in thinking about other people’s feelings and how they interact with us is totally different to anything I’ve experienced before.
LN: And there’s another big learning point there too, because companies for a long time have been concerned about, what is it, CSR “Corporate Social Responsibility”. It’s called something else now. I can’t remember what the new acronym is.
TF: Called ESG now I think, which is Environmental, Social and Corporate Governance? But that’s just basically CSR on a slight dose of steroids with a bit of rebranding.
LN: And that’s the thing. What Paul has done, he’s actually walking the walk and talking the talk, instead of, doing a sticking plaster here and saying: “Ra ra ra, we’re being accessible.” The difference is, I mean, it’s palpable, isn’t it?
PU: Yeah, it is. In the past, I’ve been guilty of the same thing. I’ve written CSR policies and we’ve had environmental policy statements and all this wonderful stuff. But you know, we’re just recycling the same as everybody else, and we’ve embellished here and made it sound wonderful there, and we put it on the website. But actually working with somebody and making the difference to somebody’s life, is making a difference to them and making difference to us and making a difference to the companies that we’re communicating with because everybody benefits from that scenario, right? Whereas on the other side, for companies that don’t want to embrace those things, everybody loses.
So, now I’m kind of torn. We want to recruit but I’m kind of torn between a rock and a hard place because I want more people like Gary. But how do I do that? Because I can’t just advertise for people with other impairments to come on board with us, because then I’m discriminating against people that don’t have any. In the fullness of time, I’m sure we’ll figure it all out.
It’s great having people like Carrie to keep us on the straight and narrow. We had a couple of conversations and we only spoke twice and look at the difference that you’ve made to my businesses already. It’s phenomenal.
LN: That’s it. It’s about people, it’s about a mindset, an awareness of accessibility.
So I guess the big follow-up question is, like you said, if everyone is just recycling CSR clauses and they think that makes them instantly accessible, what are some real ways of actually being accessible? Or what are ways that businesses can check: “Well I think we’re being accessible. Are we actually that accessible? Are we quite as accessible as we think we are?”
NK: I can start, but before I do I want to just say to Paul that I really commend you on what you’ve done because you’re making it sound like it was really easy, like you met these people and OK, everything changed. But at every point of those instances you had a choice to make. You had a choice – do I acknowledge this or do I continue on the way I’ve always been doing it? – and you’ve made a choice to acknowledge that and, like you said, make changes in your organisation, which is amazing.
You know, sometimes people don’t recognise when they’re at a turning point, that they can do something differently. So I think that’s amazing and, the changes that you’re feeling, I think as time goes on it will develop. So I think that’s amazing, first of all.
Talking about a language perspective, if people just think about: “Is the language that I’m using, is it accessible?” There are some very simple tips that you could even do just looking at your own website. For example, when you use really long sentences, that can be like what Trevor said, there’s a difference between the message sent and the message received. So when you use really long sentences, or words that you wouldn’t use in your normal everyday conversations, when you use all of these things you put a lot of cognitive load or you put a lot of processing and a lot of burdening on the user, on the reader. So in a simple way, what you can do is even count on your website how many words are there in a sentence? If you have sentences that are going to have more than 20 words more than 30 words, you’re putting too much of a burden on the user.
Try reading it aloud. Read it out loud for yourself, and if it doesn’t sound natural, the way you would speak with someone or the words that you would use with somebody in-person, then it probably isn’t that natural and it probably isn’t using common everyday words that you would use in a conversation.
So count the words in your sentences. Shorten it, be more concise, and use words that you’d use in a conversation. That a first step you can do in a simple way.
LN: How about you, Carrie? What tips would you share with people?
CC: I think there’s a lot of people that think, commercially-speaking I can’t do that because it’s going to cost too much or it’s going to be, like you say, a burden to the business or difficult to implement. There’s so much you can do that doesn’t actually cost a thing or is minimal cost. It’s just about making adaptations. Speak to your clients and your client base and see what their needs are and how to adapt best to them.
Sometimes it’s as little as picking the phone up and reading a document to them. Trevor will know from a legal point of view that lawyers can write things that even lawyers struggle to get our heads around, and we’ve trained in it, never mind the layperson. It’s about turning that into plain English, and even then, pick the phone up and speak through it with somebody and read it to them if need be.
I have clients that have dyslexia, and it’s about reading it to them and helping them understand. Or seeing if they’ve got the technology themselves like, there are text-to-read devices that can read it out for them. So they might have troubles reading, but they can listen and they’ll take it all in that way.
Considering languages, picking up on what we were saying about BSL, it’s not a case of having to interpret every time you speak to a person. If you have standard documents, like your terms and conditions, they’re the same every single time. So ask an interpreter to record a video while they’re interpreting those terms and conditions, and save that video and you can use that every time you sign up a new client.
If it’s your website, and we’ve touched on these things, you can also do that on your website. There are website accessibility specialists that can do a small audit and just tell you how to tweak things, again at very little cost if any cost at all.
People with dexterity issues. Obviously with COVID people coming into your businesses you tend to ask them to write things down or scan things. They might have dexterity issues where they can’t do that, so you can make it so that you take their information, or use an iPad so it’s touch screen which is a lot easier than writing or grabbing a pen or what have you. It might be that you can do the same with electronic signatures rather than physical wet signatures in a lot of places.
Things like, I’ve been asked to do a blog recently, and that’s fine. So with the blog, I want to have speaking and a conversation, but then I want to also have an auto caption so that there’s words along the bottom of the video so anyone that can’t hear me can read that. And again, if it’s text and you can highlight the text, your computer or your laptop can read it out.
Also if you’re posting images and there’s a lot of imagery on your website and things like that, just put a caption at the bottom saying what this image is.
So there’s just little things that cost very little that you can do to make small adaptations that makes you much more accessible to your entire client base.
LN: Those are really great tips, Carrie. We’ve had a question come in on the chat from Peggy who is asking about the increased use of emojis in marketing copy. And she asks: “How are emojis translated via screen-reading apps?”
CC: That’s a new one, to be honest. I’m not quite sure. I know there’s some, I think some of them do say like “smiley face” and things like that. So I do think some of them do. I’m not sure about all of them, so I will do some research. But I do think they read something out depending on the emoji.
TF: I’m really hoping that “eggplant” is just an eggplant.
PU: Carrie, I have a question. Is there a place that people can go where there’s an easy crib sheet for, for example, if I’m creating a website, is there some ‘do’s and don’ts’? Is there somewhere that they can go to find that information?
CC: There is but it’s not brilliant. There is guidance available on a government website. Basically it scores single-A, double-A, and triple-A levels of accessibility, and you have to do an accessibility statement on your website to say what standard you reach. It’s a good place to start. It’s good to kind of get some information from there and it gives you an idea of the technicalities and the IT behind it including coding and things like that, so you can have a look at that. (see link below)
The government website is good but it’s difficult at the same time, because it says you have to be double-A standard, but nowhere does it say anything about the single-A standards and you’ve got to tick those boxes first. Common sense says you have to do single-A before you do the double-A, but single-A guidance isn’t actually published.
NK: I know of a software tool called Stark (see link below). I think they offer an audit service, I think you can even just do it with your URL or with an API key. They will look at the visual aspects of your website like looking at the alt text and the images and the colour contrasts, to see how well it performs for visual impairment, colour blindness and things like that.
So there are a few different things that you can maybe use in lots of different ways. Tigim does it from the language perspective, but for the visual perspective I think there’s lots of information in different places but not one cohesive resource because, just thinking about the point on common awareness, I think that awareness is only really starting to happen now.
Even though we’ve all been using the Internet for a long time, I think that people are becoming more empathetic towards their audience and seeing that accessibility is good for people, and it’s good for branding and business at the end of the day as well. I think it’s definitely going to increase.
TF: Yeah, and it’s not just the technical tools. I think it’s also how do you sell this to the organisation, to the business that you’re trying to convince to do things differently?
And we’ve used the word ‘accessibility’ an awful lot in this conversation today, and one thing that keep keeps occurring to me is that ‘accessibility’ is actually the same as, it’s almost interchangeable with, ‘approachability’. If you think about it from the user experience point of view, it’s not just about: “Can I access this?”, it’s that this business or this organisation is open to me, they are looking out for me, they are welcoming me. And if you’re sending that message to a segment of the market that other people aren’t sending that message to, maybe think about how powerful that is and approaching it that way.
Going to a board of directors or management asking for resources to look at the accessibility of our website etc. Maybe it’s the approachability that you need to look at.
LN: I think that’s a really great point, and I think it’s also a great place to end. I’m looking at the clock and we’ve just gone over time a bit, so I think we should wrap it up here.
Thank you everyone. Thanks to our panel, thanks to our audience for your questions and your comments.
Again, the next round table will be in March on the 17th. Please watch for the link that will go out probably later next week, and we will hopefully see you then.
Have a great rest of the week.
LN: All right, so we’ll get started. Welcome everyone to our inaugural Plain English Virtual Roundtable.
Today is the launch of our series and we’re planning to make these a regular occurrence throughout 2022. In each of these sessions we’re going to be looking at different aspects of the plain English movement and the commercial benefits of using plain English in business writing and communications throughout the series. We’re going to be inviting industry guests to our panel to talk about how they’ve incorporated plain language into their business processes and the difference it’s made for them.
So a little bit of housekeeping before we get too deep into it. You will have noticed that we are recording these sessions. The reason why we’re doing this is because we want to create a digital resource library of these roundtables for when people can’t make it for the live broadcast. And also if anyone wants to revisit an idea that came up in a previous discussion. Please be assured that the final recording that we post on YouTube will only show the faces of myself and our panellists. The profile pics and names of the attendees will not make it to the final recording. If you have any questions or concerns about that, please get in touch. I’ll put my email in the chat window.
Speaking of dates, you might want to mark this in your calendar. The next round table is going to be on Thursday27 January, and we’re going to start that at 3:00 PM GMT. Our special guest will be Carrie Clewes from Chattertons Solicitors, and we’ll be discussing the connection between plain language communications and issues around accessibility. You’ll be able to sign up on Eventbrite again, and I will be posting the link later today on all of our social media pages.
Today, of course, we’re going to be talking about plain language terms and conditions, and how writing those in a way that everyone can understand can reduce friction between vendors and suppliers, and generally just make it a better experience for customers.
So without further ado, I’ll introduce our panel – panel if you can just give me a thumbs up or say hello when I introduce you, that would be great. So we’ve got our two co-hosts. First we have Trevor Fenton, who is a solicitor and founder of Plain English Law. Plain English Law is a boutique commercial law and data privacy practice based in Dundee, Scotland.
Next, we’ve got Niamh Kelly beaming in from Dublin. She is the CEO and founder of Tigim. Tigim is a communication dynamics platform whose mission is to break down the barriers that are ingrained in the language of professional communications.
Finally, our guest today is Graeme Kerr. He’s the CEO and co-founder of Scots of the World. Scots of the World is an ecommerce marketplace that showcases the best of Scottish-made products and experiences, and then promotes them to a global audience. Graeme is joining us from Glasgow and it’s great to be with us today.
OK, let’s get things rolling. Let’s start with a question for you, Trevor, I wonder, can you give us a quick summary of what we mean when we’re talking about plain English – quote-unquote “plain English” – and why this is something that businesses in particular should be aware of?
TF: I think plain English is really about being understood and about communicating between businesses and their clients and their suppliers and their business partners. And as a solicitor, as a lawyer, I’m painfully aware that, I’d say probably the biggest complaint that I come across from people who use lawyers is the absolute bafflegab that they get from many lawyers in their emails and especially in contracts and other legal documents.
And so for me, I look at a document and I ask myself who is going to use this document the most and are they able to use it? And when it comes to the types of things I do such as contracts and privacy notices for GDPR compliance or PIPDEA compliance in Canada, these kinds of documents tend to be written in legalese, and they shouldn’t be. So I really focus on trying to make them as understandable as possible and as painless to read as possible.
I’ll often get asked questions such as well is a planning which contract actually going to be as enforceable as a sort of traditional one? And the answer is simply yes. A contract is a document that records and agreement, and an agreement usually comes down to five things, which is: you’re going to do this; I’m going to do that; here’s the price; here’s the schedule; and if one of us doesn’t do what we promised to do, this is what we’re going to do about it.
Every contract I’ve ever read comes down to that. Every paragraph in the agreement comes down to that. So why would it need to be written in this sort of pseudo-Shakespearean language that nobody actually speaks to their customers in? It’s a jarring experience, I think, for customers when they when they come along and they’ve been enjoying the interaction with you and suddenly you stick this piece of legalese in and it’s a total, you know, it actually threatens your brand in some ways because it’s a totally different feeling than what they had in the conversation that led them to think that I’d like to buy something from this person.
LN: I wonder, is that because people just assume that this is how legal contracts and documents like it are just supposed to be written? Are people thinking that they’re not enforceable if it’s not written this way?
TF: Yeah, well I think it’s a habit and it’s a habit that comes from, I think it probably comes from law school if I’m perfectly honest because, when you learn the law, you’re reading all sorts of old court judgments that were written in a much more formal style. And you can you know, you just get into this headspace where you think: I’m not doing “legal” unless I’m writing in this style. So it’s almost a bit unconscious. And it then gets reinforced through the process of training to become a solicitor. The way that you end up putting documents, or are shown to put documents together, you’re reusing old forms of words that you know have worked in the past, and the thing is that most of our clients have moved on from writing these very formal letters to each other. Look at it a personal letter that somebody would have written to their lover 100 years ago. I mean the style of language back then was very different and I don’t think our legal documents have kept pace with the way that we interact with our customers in real life, in modern times.
NK: I’d like to add just pick up on some of the points there that you thought you made that I thought was very interesting. You said like they’re often using this language, and maybe it doesn’t match with their brand, or it could harm their reputation. A lot of companies, they spend a lot of time on what their brand is, their brand voice, but then on the legal side of things they go back to those old habits like you said, which I do think come from the past. Companies that want to be current and want to show themselves as being quite current and modern need to be speaking to people in a modern way, with you know, accessible language.
And when I say accessible language, adding that on from plain English, it’s that we have to think about who your audience is. You know, if you’re a retail business, you are selling to consumers, you know in Britain, say for example. In Britain, you have 9 million people, 9 million adults that can’t read or write and you have over 6 million with dyslexia. So there you already have quite a large proportion of the population that can struggle, and how many of those actually might be your consumers or your potential customers? And the answer can be quite a lot. So you don’t actually know who you are communicating to. You don’t know who this language is reaching and, if you’re putting those barriers there in front of people, then it can have more detrimental impact on your brand with complaints, with you know, contracts not going in the right way and ultimately it can be causing more problems for your business overall than you know than giving you gains.
TF: I think what’s really interesting about this Niamh is that so many of us do these kinds of things. We write in this style without even realising that we’re doing it. You know, professionals in particular, I think, overestimate the literacy of most people. And when I say literacy, people they’ll be able to understand the words, but actually be able to get the meaning out of the document and do it in a way that they’re both comfortable with and they can do it quickly enough that they actually will read it and understand the document. And if you don’t realise that’s what’s going on the other side, and you’re writing in your own style, you might have no idea what it is you’re doing that’s causing these kinds of barriers for other people.
I think, having looked at the tool that Tigim is working on is and now released, it’s a great tool for actually pointing that out to you, isn’t it?
NK: Yeah exactly, and that’s what we’re trying to do. The way I think people write and try to communicate is at their own ability level, and the people that are writing a lot of these legal documents have masters degrees and everything. So I think of it that we write with our own ability bias: What can we understand, or what do we know to be believed to be true.
So what we’re trying to do is actually flag up points to say: Look at this sentence. Look at this word. We have a diverse population. Everybody doesn’t speak English as a first language. They have dyslexia, low literacy rates, and they just don’t understand all of the jargon in legal documents. And so what we do is we classify all of the words, and we say this word actually might be quite complex for some people, and that could even be a word like “commence” instead of “start”. Why use it when there’s an easier alternative that more people will understand? And that simplicity can really engage more of your audience and not lead to problems down the road. That’s what we’re trying to avoid. That’s good for your business, not the alternative.
GK: I think the brand part of that I think is quite important. Because I think there’s a lot of, especially a lot of big brands that claim to focus on customers and customer experience, and people buy into the brand and what they what they believe in and what their ethos is. A lot of these big companies, you look at their agreements or terms and conditions or legal documents, and I would have thought 9 out of 10 of their customers don’t understand them.
So that, I think, that’s an idea that a lot of the big brands probably haven’t picked up on as well, that it probably creates some mistrust among some of the customers. I would imagine a lot of them just accept them because they don’t understand them, but that obviously causes knock-on effects further down the line which could then damage the brand.
TF: I wonder how many customers end up, when they actually see an example of whether it’s terms and conditions or privacy notice or just whatever bit of your website they’re looking at, when they see it’s well written, when they see it’s easy to understand, it’s concise, you know. I wonder how often they actually come away from that thinking: “that’s unusual”. Because if most people looking at and expect the terms and conditions, you know, we talk about the fine print, you need to look out for the fine print.
And why is it “fine print”? Well, number one there’s too much of it. How do you fit it into a small space? Make it 3-point font! Number two you know most people are looking at that going: “What are they trying to pull? What is what is buried in there that I don’t understand? That these people have hired some lawyers who are smarter than me and know how to make words dance. What exactly am I agreeing to here?”
LN: There’s an intimidation factor in using really complex language. Because when you read this, instinctively you don’t understand it if you’re not a solicitor, or you don’t have the training. And then you think, oh, I’m I too embarrassed to bring this up to admit that I don’t understand. Or maybe what are they trying to pull by using all this complex language? And neither of those are really great for the customer experience at all, are they?
NK: I think there’s a thing there with transparency. A lot of companies, again they’re trying to create communities around their brand and try to sell in a way that says, we’re really transparent, this is how we treat our employees, we’re really great at doing this, this, this and this. But yet they use that, you know in the terms and conditions, and it does feel like there’s things in there hidden. And you feel like sometimes that they don’t want me to read this because it’s going to catch me out.
I think with the pandemic as well, there’s been such a movement to everybody, you know, businesses going online, and then people having to buy a lot more online as well. That there were some sites and things coming up that if you didn’t feel that they were very transparent with their terms and conditions, I know I personally would stay away from them. If I couldn’t get a lot of information about shipping and things like that, what will happen, refunds, and then I would just I, I wouldn’t. I wouldn’t go there. And then alternatively with other factors such as insurance companies, you know flight insurance, all of these things. I had to go to find flight insurance. I looked up my insurance policy there yesterday and there’s 80 pages in it! 80 pages that I needed to get through in order to be able to understand something and it’s really difficult.
I analysed it with our software as well. We do a six point scale and it’s five out of six – it’s almost like an academic research paper. The language in there is almost as difficult as an academic research paper that it’s too overwhelming for people. And what that means then for companies is I’m on the phone, I’m on the phone talking to people, wasting their time, wasting, you know, call centres and using their time rather than them making profits and doing good things, they’re listening to people that don’t understand their terms and conditions. “Do we really need 80 pages?” is a question that I would like to ask insurers, you know, first hand is 80 pages really necessary for me to understand my rights?
LN: And that’s a good point and leads really well into Graeme’s experience. Graeme, you’ve got a lot, quite extensive commercial experience on working on boards and different companies and things. And you’ve recently gone through a plain English exercise with your own business. Could you talk us through that? Like, what have you experienced before and why did you undertake this process?
GK: Yeah, so I’ve been involved in quite big, pretty big businesses, so quite a large PLC in the UK and then an international travel business. And I think the common thread with a lot of contracts and terms and conditions. Say these actual businesses themselves, you know we dealt with a lot of big suppliers as well and you would often come across these contracts and they were all written in a way that a kind of layman wasn’t really going to be able to understand.
We were fortunate that we had legal teams, or we had lawyer firms who would check contracts. But it just became a culture in the business that none of us agreed to terms and conditions or contracts without that legal support, which slowed everything down. You know, it did create a kind of mistrust because a lot of the times the legal firms would come back and say: “You should challenge XYZ” which I think is not a great way to then start dealing with suppliers and companies.
So when we founded Scots of the World, we were very conscious that we wanted to create something that was going to be very easy to understand. Because you know 9 times out of 10 the vendors and the brands that we take on board are small independent companies, they don’t have legal firms and they don’t have potentially the budgets to get everyone to check every contract they get, so we wanted it to be a very straightforward and easy to understand process.
So I’d met Trevor on the various networking circles and I think, just the philosophy that came across was this ability to write something in a way that A.) I was going to be able to understand and B.) the vendors were going to be. And I think they testament to that working is that we’ve taken on about 50 brands and I think we’ve had 3 queries across all of them. You know, we were warned by a few of them, a few of them said I’ll be looking through the terms and conditions with a fine-toothed comb before I sign anything so they definitely have read them.
I think it’s definitely been a worthwhile exercise because it’s saved us a lot of time. The 3 queries that came back, I was able to answer them all because I actually understood the contract. I think it just helps our brand because everyone mentioned it was very easy to understand, we weren’t trying to hide anything, everything was pretty straightforward. So you know, I think it’s been a very worthwhile exercise, from the perception of us as a brand, but also, it saved us a lot of time and money as well.
TF: That’s great because, when you think about who’s reading those documents the most – you’re operating an online marketplace, so you’ve got your vendor supplying products and you’ve got your customers coming and selecting those products and then going to the basket and ticking the little box that says yes, I accept these terms and conditions – those are the people reading the document. If anybody does, they will.
And I think one of the reasons we still have these kinds of very legalistic overly long and complex contract templates out there – and templates, by the way, these are just ones that people download online and use themselves. These are the same as a lot of the contract templates that law firms use as their starting point. These are very complex arcane documents, and I think the reason for that is because, Lucas you mentioned about people feeling intimidated perhaps, looking at a contract and thinking, wow, this has been written by some, you know, a really smart lawyer who obviously knows all sorts of stuff and I don’t know anything. I’m going to be perfectly honest with you, that’s how it feels when you are learning to be a lawyer, when you’re doing your training contract or your articles. You get asked to do things that you’ve never been asked to do before, and when you go and download one of these templates, that it’s come from 100, 200, 300 years of history, 1000 years of common law frankly, and the first thing that happens, that first thought that occurs to you is: “I’d better not change anything because this template has obviously been written by a much smarter, much more experienced person than me. And if I don’t understand why that clause is in there, there must be something, it must be because I’m a numpty, not because the clause doesn’t belong there.
And the other thing is, so there’s that fear, you know, I’m not going to cut this document back because I don’t know what I’m doing. The second fear is what if this goes in front of a judge. What I’d like people to think about is: “how often does that happen?” So whether you’re buying £50 or £100 worth of stuff at an online marketplace, or even if you’re signing a £100,000 or £1,000,000 contract, what is the likelihood that that contract ends up in front of a judge? I’m going to say it’s only very slightly more than zero because the vast bulk of legal documents never end up near a court.
And what that means is that, by definition, the user of the document is almost never a judge. It’s always almost never another lawyer either. It’s going to be the customer, it’s going to be the business, it’s going to be a supplier of that business, it’s going to be the business partner of that business founder. Those are the people using the document, and so those are the people who need to be able to use it.
That’s why I love hearing from Graeme that the feedback from his vendors that they were able to go through it, that they were able to understand it, Graeme felt comfortable using the document, that’s exactly the result I think we should all be shooting for. But it takes a lot of confidence to do that and, frankly, anyone coming straight to law school will never have that confidence. Or if they do have that confidence it’s pretty rare.
NK: I think that’s an amazing outcome Graeme for, like you said, building the trust with your vendors as well as building up them at the marketplace. And I think on your point, Trevor, that you said when you don’t want to change something in these documents because you think somebody smarter than me wrote it. And that’s the way consumers feel, or vendors. It’s like: “Well, I don’t understand this. That’s my fault because I’m not smart enough to understand this” and actually it’s not your fault at all. It’s companies and organisations putting the onus on the consumer to understand everything rather than taking the responsibility to communicate in a way that their audience, their consumers, no matter who it might be, can understand it. You know it’s, kind of important that this is their responsibility, if we’re going to do everything to make the sale, if we’re going to do everything to come get their money then why would we not be clear, transparent and not make people feel less smart than us? And that would be a really nice characteristic of an organisation like Graeme has demonstrated with his.
GK: I think the thing that that strikes me with it is, from the business’ perspective and consumers’, I think it’s created a bit of, a kind of apathy towards the contracts themselves, because I think people just don’t read them. Then I think if people think straight away, I’m not going to, I’m not even going to bother reading these terms and conditions because I’m not going to understand them anyway. Or they kind of look at them and, as you say, if it’s 80 pages they probably go: “Well, I’m either not going to read that” or “I won’t understand it”.
So I think that the knock-on effect is something happens or they’re not happy and they go back to the business. So yeah, I think it’s just a way for people to ignore terms and conditions, and bypass them as well, which I don’t think is good for either party.
TF: No, it’s not because, when the business I buy something from does something I’m not expecting or I don’t like, and I’m not expecting it because I haven’t read the terms and conditions, it doesn’t help. It certainly doesn’t help the customer relationship for the business to then turn around and say: “Well, it’s right there in the T&Cs and you need to check clause 13.4.8.” Well, I didn’t read the T&Cs because they were enormous and I just don’t have the time. Before spending that relatively small amount of money to read through all of that – nobody has that kind of time.
So it can really, and that’s when I think that the customer starts to feel like they’ve been had because their expectation got dashed and I don’t think, if you’ve got a contract people can’t readily understand then I don’t think they had a chance to understand it the first place, so you’re setting them up for disappointment. And I can’t think of anything you could do that could harm your brand more than routinely setting your customers up to be disappointed with you.
GK: Yeah and if anything, I think we had almost the opposite happen with one of the vendors. They’ve queried something which I think they, well, they then admitted to the fact they didn’t read the terms and conditions. And then when they read the terms and conditions they said: “I’m shocked. Yeah, I wish I’d read these because I now understand exactly why this is happening.” I think that kind of backs-up the fact that, they probably just didn’t, they’re used to something that they’re not willing to read because they didn’t think they would understand it. Whereas in fact, if they had read that, they would have known from the start.
NK: (laughing) Yeah, you caught them, you caught them out. But I think there’s a lot more knock-on effects as well down the line in some organisations, depending obviously on the on the size of them. But if they have call centres, they have to hire people just to handle queries that are maybe already written there but not understandable for a lot of people. And in call centres and things like that there’s a high turnover of staff, so there’s a lot of costs in retraining staff, hiring staff because people don’t want to be listening to people complaining all the time or asking questions or like: “It’s there on page 36.” OK, well, why don’t we just simplify page 36 and then we can minimise that?
And there’s an example of an organisation, Ministry for Justice actually in Portugal. They simplified, in their commercial debt collection, they simplified the terms and conditions and the injunction letters that were going out to peoples’ houses, and they reduced the income on call queries by 147% and they increased the rate of people paying back debt by 67% in a over a year period. It took a little bit of time but again they invested that time in simplifying the letters that were going out to people and saw huge returns in receiving the money back and lowering the amount of call centre staff they needed.
LN: And I think that’s a great point. It’s the timesaving – that’s the real value. When there’s understanding, when everyone understands it, then there’s less responses to queries from customers, there’s less call centre time. There’s more time to be like spent doing what you want to do, business development, getting new customers. That’s huge.
Niamh, in our chat before we started, you mentioned about how now is a really good time to be thinking, for businesses to be thinking about language and if you are understandable, and simplifying using the plain English. I wonder if you could tell us about that, about these legislations that are coming in?
NK: Yeah, I think it’s becoming a lot more known I suppose around the world. There have been some of some countries like America, for example, where they introduced the Plain Language Act in 2010 for government and for government websites and public documents. Whether everybody follows that or not, this is something different, but it’s something that is having a knock-on effect in a lot of other countries. In Ireland we have a bill in. In the UK there is an ISO standards coming in that has been trying to get through for a few years, so 2019. They’re developing the ISO standard again for public documents in Australia and now New Zealand as well are trying to pass that legislation, so there’s going to be a requirement of organisations to actually make sure that their communications are at a plain English standard.
So I think for those reasons there is a lot of people, there is a plain language movement, there’s a lot of people that have been pushing this, maybe solely for quite a while. But now it seems that people are starting to listen a bit more. And I think a lot of that comes from how open society is as well, like with diversity, and with remote working, everybody hiring all over the world. But you know, you can’t just give a contract, your English language contract, to somebody from a different country – it’s not their first language and expect them to understand that.
I think the awareness of diversity is opening people’s minds, at the same time as these bills being passed through in a lot of countries. So it’s better for a lot of organisations to try and get ahead of the curve rather than legislation gets passed and then oh, you need to follow this and maybe, I don’t know, you’re fined or something like that or you’re going to lose out to the competition. So the companies that can get ahead of the curve now, I think they’re going to have a competitive advantage moving forward.
LN: It must be particularly true for a company like your own Graeme, literally a global marketplace. Have you found that the kind of international audience you’re dealing with is responding to kind of T&Cs that you’ve that put in your business.
GK: Yeah, I think again this is where it comes back to writing it in a in a way that people understand because I mean, it’s obvious to say there’s a lot of different variations across different countries. A lot of contracts will be written in different ways and different jurisdictions of law, and I think thinking of writing it in a way that’s understandable certainly helps from an international perspective.
Certainly, we were spending a lot of time on the GDPR aspect and data protection as well, because obviously we need to adhere to that here. It’s, as you know, it’s notoriously strict compared to other parts of the world. I think as that evolves, I think you’re probably in quite a good place as well. You’ve obviously seen those states in America starting to become a bit more strict, California, for example. But I think adhering to GDPR here, I think it’s probably been a good thing, if anything, because it means that we’re probably well placed for virtually everywhere else in the world as well.
TF: And GDPR is a really good segue into pointing out that the GDPR itself actually mandates using plain language. It uses that exact term in the GDPR to say: “This is how you need to write the privacy notices.”
We see all these privacy notices, links to them on the bottom of websites. I think most of us categorise privacy notices in the same category as T&Cs, we go: “Yeah, whatever.” But the point of that privacy notice is to tell people who you are, what you’re doing, what data you’re collecting about them, what you’re doing with it, how you’re keeping it safe, who you’re sharing with, all those kinds of things. And these are things that, I think if you ask most people they say well yes, of course I should know who’s got data about me and what are they doing with that data – it’s the privacy notices on all these sites that tell us that.
Through the GDPR, what the European Parliament was telling us is, guys you have to do this in language that people understand or otherwise you’re not telling them. So, telling somebody something very complex in complicated language that they can’t understand is just as good as not telling them anything at all. And the GDPR recognises that. PIPEDA, which is the sort of the equivalent federal law in Canada, same thing, it’s been around since about 2000, it requires plain language for use in privacy notices.
The GDPR itself is basically propagating, it’s working its way around the world, one country after another in other parts of the world, Africa in particular. I’ve been doing some work with a company there and literally one country after another is taking the GDPR, almost photocopying it and passing it into law as their local privacy law. So, these standards are working their way through and they demand plain language because frankly, most people need plain language in order to understand what it is that we’re doing.
NK: GDPR just puts fear in people. They’re just copying what somebody else has done, that’s how it it continues, right? It’s like, that person is smarter than me, they must know what they’re talking about, I’m going to copy that and this is how the cycle continues. And there’s nobody that puts the brakes on that and says: “Hold on a second. Can we do this in an easier way that can make everyone happier and not so afraid and worried about all of these scary things like GDPR?”
I think those four letters just conjure up so much fear in people. That and data protection and all of that, is such a massive area and so important, but there’s still so much confusion around it. And again, the onus isn’t all on us as consumers to understand everything; the onus is on the organisations to make it clear to build that trust with their audience.
GK: Yeah, I think there’s still a lot of misunderstanding around GDPR as well, and I think especially related to kind of online businesses, privacy policies and cookie policies and things like that. Because I have had various conversations with people and I’ve asked them how have they approached it. And they said, well essentially just what you said, you know, copy and paste it from somebody who they think knows what they’re doing. Because you know you need to very much tailor these two things in particular to what your business does, how you handle it, where you store things and things like that.
But again, I think that just comes back to the thought that it’s a too complex a thing to deal with so we may as well just use something somebody else has done and that’ll be good enough.
NK: And hope they don’t ask you questions about it, because you can’t answer them because you didn’t write it.
TF: I think that one of the great ironies about the GDPR itself, by the way, is it mandates plain language in privacy notices. If you’ve ever read the GDPR, you know it is not an example of plain language drafting. It’s, I mean, I’ve seen way worse, but oh my goodness, those sentences are long. They’ve got enormous numbers of commas. You spend an awful lot of time trying to parse paragraphs and figure out: “OK, does this adjective modify that noun or that noun?” But anyway, life is full of these ironies, I suppose.
NK: One of the things about plain language is that one of the recommendations is not to use acronyms. GDPR in itself, once again is the irony of it all.
LN: It sounds like plain English, we’re talking about plain English like it’s this silver bullet for everything, so can we just use like plain English writing in all of our documents? Does it work for every legal document?
TF: It can, but it doesn’t mean it’s always appropriate, so I’ll give you an example. When you’re writing a will, for example, now this is not something most of us do you. If you need a will done, you’re going to go to a solicitor or a specialist will-writer. And I can almost guarantee you, they’re almost certain to use some ancient forms of language in places and then have to explain it to you. Now on the one hand, I’d say maybe that isn’t necessary, maybe they could have written it in plain language. But on the other hand, the consequences if you will, you know, if you’re fortunate enough to have lots of money to give away when you’ve made your last trip around the sun, there could be a lot on the line, so making up new language to do the same transaction that’s been done millions of times before probably isn’t a smart idea.
Let’s remember who’s reading this will. This is not something that you and your customers and everyone else pulls out and uses on a daily basis to try to regulate your relationship. It’s something that comes out once you’ve died, your executor is going to look at it, probably a solicitor or two will look at it, and if things go badly maybe a judge will look at it. So that, to me, is an example of a document where this isn’t really a daily use document, so I think plain language is less urgent.
Same thing for property conveyancing. So when you buy or sell a house, all those documents that go into the Land Registry to explain this is what the transaction looks like, again these are standardised documents that rarely involve negotiation about the wording because everyone’s reusing the same wording for every transaction. It’s not something you’re ever going to pull out again. You buy your house, you’re done, and if you ever pull out your deeds it’s because something has gone terribly wrong and you’re probably taking them to a lawyer anyway.
So that’s an example of a document where I think the user, in that case, probably isn’t a member of the public, and it might not be worth the effort and the risk. But a commercial transaction, or when you sell it, you’re selling something to another business or to a customer, that’s where the documents are about your business and about your business relationship. Everybody who’s involved in that relationship should understand every word that’s in there, they should understand every consequence of every sentence.
GK: Linked to that, there were a lot of the process that we went through drafting out terms, getting a real understanding of the business and the relationship. And you know, the who and what clauses were going to be relevant to what parties. And I think that’s where doing something very tailored and, as Trevor said, not necessarily using just a template that’s been around for many years, I think that’s all part of the process because it then makes it very easy to understand. You know, these clauses relate to this and I think it’s all part of the process.
NK: Can I just ask you Graeme, because obviously there’s a time investment that is involved in altering your terms and conditions and contracts beforehand. Obviously you’ve seen the benefits of it now, but what sort of timescale did you input to bring them into plain language?
GK: I think, from experience, I think we probably invested a bit more time than we would have done previously. Just because I think in previous contracts I’ve had drawn up for previous businesses that I’ve had, probably were very standard and we didn’t really have a lot of a lot of dialogue through that process. Whereas this one, because it was quite a unique model as well, they needed that, that kind of input. But I do think it’s definitely been a good use of use of time with the benefits that’ve come out of it.
From Trevor’s perspective, does writing up a plain English contract or terms and conditions take you longer than they would have done with a more traditional process?
TF: Yes it can, because the traditional process is download the template and then just go through and just maybe delete the odd thing or tweak the odd thing but largely leave it alone. And whereas to do it in plain language, you actually start the other way around. Or maybe what you do is you take that complicated template and use it as a checklist, but that’s about it.
There’s that famous letter that Mark Twain may or may not have ever written but everyone says it was Mark Twain, so I’ll go with it – he starts it off saying something like: “I’m sorry to have written you such a long letter. I didn’t have time to write a short one.” And there’s no truer sentence has ever been written. Because if you want to write, anybody can write a 95 page contract, anybody could do that, you know, stream of consciousness, throw in every imaginable term that you’ve found from a template from a database of standard terms. But to actually sit down and say, is this actually necessary and actually prioritise not only what’s likely to happen, but what do we know? What’s the actual core of the deal and the relationship here? And what are the things we actually need to talk about?
Because you can never talk about everything, you have to draw the line. Somewhere, when you’re making a pitch to a customer, you don’t talk to them about every possible eventuality. You couldn’t possibly do that. So why are you doing that in the contract? It really forces you to sit down and think about what’s important to you to your customer. And in order to get it down into a form where you say, yeah, this provides enough of a framework, enough protection for both sides without running on at the mouth, that’s a really good point.
LN: Ok folks. I’m just looking at the time and we are right on time, so I’m going to throw the floor open to any of our guests who want to share some final thoughts, or if there’s a question that anyone would like to ask, this is your time. And if not, I think I’ll just wrap it up here.
So thank you to everyone for attending. Thank you very much to our panel: Trevor, Naimh and Graeme, thanks for joining us today.
If you’d like to revisit this recording, just go to our YouTube channel. It should be up in the next few days as well as all the rest of our future roundtables.
A reminder that our next roundtable will be January 27th. That’s a Thursday and I’ll be putting the making the Eventbrite link live this afternoon.
So that is it from us. Thank you everyone for again for joining us and very Merry Christmas. And we’ll see you in the New Year.
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. This is Part One of a two-part episode where Dayle and I discuss the role of UK GDPR Representatives for overseas companies. You can find Part Two on our main podcast page at https://plainenglish2026.temp-dns.com/podcasts/.
In Part One, I use examples to show:
Which businesses need a GDPR Rep and which ones don’t.
What a GDPR Rep actually does and what their services typically cost.
The effects of Brexit on GDPR Representation.
And finally, the potential consequences of needing a GDPR Rep but not having one.
As a side note, near the end of Part 1, I said I didn’t know of any companies having been fined for not having a GDPR Rep. Well, as it turns out, I found one about a week after making this recording. A short summary of that case can be found in our list of FAQs here: https://plainenglish2026.temp-dns.com/uk-gdpr-representative/#faq
TF: We are talking about UK GDPR Representatives. So you hear the term “UK GDPR Representative”. What’s the first question that pops in your head?
DR: For me, I start thinking about the ICO (Information Commissioner’s Office), but maybe it’s because I’m too close to it. Like, is it someone that has to negotiate between the business and the ICO? Does there have to be someone in place?
TF: No.
DR: No, see there you go, completely wrong. (laughing)
TF: So, the basic idea behind the GDPR, of course, is to protect people’s data no matter where it’s being held in the world. If you live in the UK you are covered, your data is protected by the UK’s GDPR. Now the UK’s GDPR used to be the exact same as the EU’s GDPR when the UK was part of the EU. Brexit has changed a lot of things and not very much at the same time, if that makes sense when it comes to GDPR.
So what happened was that the UK left the EU. We took with us our own copy of the GDPR, we essentially photocopied it more or less. So the UK’s GDPR is now a separate law but, practically speaking for most businesses, it is essentially the exact same GDPR as they were subject to before Brexit.
What’s different though is that, sorry, I’ll try that again. What’s always been part of the GDPR is when an organisation located outside the EU, that doesn’t have an office in the EU, might still be subject to the GDPR if it is processing, basically, if it’s selling stuff to consumers in the EU.
So let’s say a Canadian company for example. It’s got offices only in Canada, and you would think, well, how does the GDPR apply to a Canadian company? It applies to that Canadian company if it is selling to consumers in the EU, or if it is tracking the behaviour of people within the EU, say by using technologies such as website cookies. Yep.
DR: Ok.
TF: So your Canadian company’s website is accessible from the EU, it’s being visited by EU people, you’re putting cookies on their devices, you’re doing monitoring for marketing purposes, you’re monitoring what pages they visit, you’re using Google Analytics for example – just doing that brings the Canadian company within the EU’s GDPR.
Well now, it also brings with the UK’s GDPR if it’s UK people that they are selling to, or UK people that they’re monitoring.
Here’s the thing: under the GDPR, they’ve always had to get a representative located within the EU. So if you don’t have an office in the EU but you’re subject to the EU GDPR, you have to find an EU-based representative and basically provide their contact details in your privacy notice.
So let’s say a German person is browsing or shopping on your Canadian website, and then you sell something to them, and they think: ‘Well, I don’t like what this Canadian company is doing with my data’ – they have to have the ability to contact an EU-based representative to complain to them and say: ‘Hey, I don’t like what that Canadian company is doing with my data’ or even ‘I want to know what data that Canadian company has got.’ They have to have some sort of a local option if you will.
DR: So I’m probably going to paraphrase this in a horrible way but essentially, what Plain English Law would be is the GDPR punching bag, right?
TF: No, well, not so much the punching bag as the relay point.
DR: That’s a better way of saying it – the relay point – because companies have to have a representative in the UK for EU and UK customers, and Plain English Law can be that representative.
TF: Exactly. So in other words, the Canadian company could say: ‘ Our representative in the UK is’, or rather, to UK consumers: ‘If you’ve got questions about your GDPR rights, contact us via Plain English Law’ and it would give Plain English Law’s contact details. So that way your UK consumer doesn’t have to be contacting a Canadian company, you know, having to make an international call to deal with what is perceived to be a hassle.
Whether it is that much of a hassle, these days or not, is a totally different matter, but that is what the law requires. If you are selling into the UK to consumers or if you are tracking the behaviour of people within the UK, through your web cookies, etc., you have to have a UK contact point for people to exercise their GDPR rights.
DR: Using the Canadian company example, what are the repercussions of not having a EU or UK GDPR Representative?
TF: You’ve committed an offence under the GDPR. You could theoretically be sued, but that’s not likely going to happen. You could be subject to a fine. The Information Commissioner’s Office (ICO), which is the regulator in the UK that’s responsible for enforcing the GDPR, if a UK consumer were to complain to the ICO: ‘Hey, this Canadian company doesn’t have a GDPR Rep in the UK, and they need one because they’re selling to me and I’m in the UK’, then you could be subject to a fine.
It’s a fairly basic compliance step. It’s a simple compliance step, you just have to have a contact point, that’s all. If you’ve got an office, or some kind of permanent establishment in the UK, then you don’t need to appoint a Rep because you already have that contact point.
So if that Canadian company had a subsidiary over here or had an office in the UK, then they wouldn’t need to appoint the Rep because they’ve got an establishment here and that would be the contact point. They would just simply provide those contact details in the UK instead. It’s companies that don’t have an establishment in the UK and are selling into the UK – those are the ones that need to appoint a representative.
DR: And can I assume that you need a representative as long as you’re trading in the UK or EU and don’t have a presence there? There’s no timeline on this – until you actually establish a business premises or…
TF: Or stop selling into the UK and purge the data, that’s right. Basically, as long as you’re processing that data, as long as you’re holding onto that data about UK consumers, then you need to have a representative locally.
Now, what’s curious and what’s a bit irritating, I think, for a lot of businesses in Europe about Brexit is the fact that a UK business that’s selling into the EU has never needed to appoint an EU representative until the Brexit transition period ended. Now in 2021, if you’re a UK business and you’re selling into the EU, actually the EEA so throw in Norway, Iceland and Liechtenstein with that. Anyway, if you’re selling into essentially the EU you need to now appoint an EU Rep. Pick a country, any EU country into which you are selling, you need to appoint a rep in one of those countries. That wasn’t necessary before Brexit.
Similarly, a German company, a French company selling into the UK if they don’t have an establishment in the UK, some kind of office or subsidiary in the UK, then that French company needs to appoint a UK Representative. Again, they never needed to do that before Brexit, but now it’s necessary.
DR: How much does a GDPR Representative cost?
TF: It depends on the size of the company, but the basic price starts at £25 a month, billed annually in advance, and a one-time setup fee of £100.00. So, because we have to open the client file and get to know who you are and get to know your business first, and then depending on how big your business is and how many customers it’s got in the UK, once we sort that out that’s when we can give it a more precise price.
Because what the service involves is, if someone in the UK wants to contact your business, and they come through Plain English Law because we are your representative in the UK, every piece of correspondence that we get we have to scan it and forward it to you, and possibly reply on your behalf once you instruct us to do that. The bigger your company is, and the more customers it’s got in the UK, the higher that volume of correspondence is likely to be. So that’s why there is no clean answer to the price question. But the basic price will start at £25 per month.
DR: Paid upfront in advance, so £300 a year initially. And like you said, as an example, if you had an e-commerce business that has 1000 transactions per day, that fee is going to be a lot more than a service-based business that has 10 transactions per month, because the potential for a customer to contact the representative which is you, Plain English Law, goes up, so there’s going to be a potential increase in fees, right?
TF: Correct. Realistically speaking, the likelihood of there being thousands of people contacting your GDPR Rep is almost 0. I mean, realistically speaking, most businesses do not get contacted very often by people asking to have access to a copy of their data, but it’s for that moment when somebody does, that’s when your lack of a Rep can cause a problem and could cause an investigation right then and there.
Because it’s a fairly basic requirement of the GDPR: ‘Don’t have an office here? You need a Rep.’ People need someone in the UK that they can contact. If they can’t contact anyone and they complain, that’s the issue.
DR: I guess because it’s a fairly new law in terms of notoriety or people knowing about it, there haven’t been that many cases of this happening? Are there any stats on how many companies have been fined or how many companies are potentially at risk?
TF: Correct and, to be perfectly honest, I haven’t heard of people being fined for not having a GDPR Rep. But I’ll tell you why I think that is.
There are a few reasons. First of all, the GDPR is relatively new. It’s only been in force for a little over three years, and the enforcement is only starting to ramp up now in different countries.
Secondly, practically speaking, it’s a problem only for smaller companies. Because if a company is large enough, it’s probably going to have an office in many of the countries that it does business in. You wouldn’t have an office in every single country you sell to, and almost no company does that unless they are the size of Microsoft. But what you might have is probably one office at least in the EU. That office may in fact be in the UK if you’re a larger company, or it might be somewhere else in Europe.
If it is somewhere else in Europe, that used to mean (before Brexit) that you would also have the UK covered, and now you don’t. A lot of companies use Ireland as their EU base because Ireland’s got a very favourable tax structure for international companies, and so that is often a first port-of-call for companies looking to establish themselves in the EU, particularly when they saw Brexit coming. They said: ‘Alright, we want an English-speaking country in the EU.’ Business-friendly Ireland fit that bill, so Ireland has been a destination for multinational companies for a large number of years.
Having located in Ireland used to cover off the UK for EU-related issues. Now it doesn’t, so suddenly it triggers this requirement to have GDPR representation. Brexit has triggered this requirement for companies that are using Ireland as their European base.
—
transcript of Part 1 end
Episode Title: UK GDPR Representation part 2
Podcast Description:
Companies who trade in the UK but have no fixed “establishment” here are required to appoint a UK GDPR Representative to be compliant with Article 27 of the GDPR. But what does that actually mean?
What does a UK GDPR Representative do? Who can be a UK GDPR Representative? How much do they cost? What are the consequences if a business needs a UK GDPR Representative but chooses not to hire one?
This two-part episode does a deep-dive into what UK GDPR Representation is all about, and is supported by a list of FAQs at the bottom of the page.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 06 Sept 2021
Recording Length: 00:26:15
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. This is Part Two of a two-part episode in which we discuss the role of a UK GDPR Representative. You can revisit Part One on our main podcast page at https://plainenglish2026.temp-dns.com/podcasts/.
In Part Two, Dayle and I talk about:
Qualifications and characteristics you should look for in a GDPR Rep.
“Red flags” to look for in your existing privacy notices.
Comparing the GDPR with the equivalent Canadian law, called PIPEDA.
And finally, why you should consider revisiting your approach to GDPR 3 ½ years after it came into force.
—
DR: In the last couple years, I’ve come across a lot of GDPR “experts”. I don’t know why use air quotes on a podcast but I hope they can hear my tone of voice: experts. What could I, as the consumer or the conscientious business owner, look for as a seal of approval? A stamp that says this person actually knows what they’re doing, they’re not just reading some stuff off of Wikipedia and then rehashing information? What quality assurances can I look for when looking for a GDPR Representative?
TF: Well, you can look for certification from the IAPP. The IAPP is the International Association of Privacy Professionals and it’s an organisation with about 50,000 odd members across the world, based largely in the US and in Europe but very much a global organisation.
They have a certification scheme for European, Canadian, US, and Asian privacy expertise. You could look for someone who has the designation CIPP, which is a Certified Information Privacy Professional. I’ve got that designation for Europe (CIPP/E) and I’m working on the one for Canada (CIPP/C).
The CIPP certification is definitely a mark that shows that, number one: not only do you take the issue seriously, but you’ve passed a certification programme to demonstrate your knowledge of privacy law in in that part of the world that you’re certified for. So that’s certainly one seal you can look for.
But aside from that, to be perfectly honest, there is no professional regulation of GDPR expertise. Anyone can call themselves a GDPR expert, and it does require a certain amount of due diligence on the part of the purchaser to dig a little bit deeper and find out if the person they’re talking to is actually knowledgeable about the topic.
And that’s a difficult thing for somebody to do when you are coming at it from outside of the UK or outside of the EU – you’re not actually subject to the GDPR in your day-to-day business quite the same way, so it can be a real challenge.
And really, it’s like any other professional service. You’re just going to have to talk to some people, talk to different service providers and decide who you’re comfortable going with.
DR: Have you ever come across any so-called experts and realised that what they’re saying isn’t correct? And are there any red flags that we could look for? You told us what we can look for as a positives, but are there any phrases that people use that aren’t quite right? Or is this too broad a question?
TF: It is pretty broad. It’s difficult because, especially because I’m talking a lot about Canada here, because if you’re talking about GDPR and the GDPR “expert” immediately starts talking about “getting consent”, they may or may not know what they’re talking about.
My experience is, that is, consent is important under GDPR in some circumstances, but it’s not the be-all and end-all. In the early days of GDPR, when there was a rash of firms that came out advertising GDPR expertise because the business community was frankly running around trying to figure out what to do to get ready for this new law, there was a lot of not very good GDPR work that got done.
There was a bit of a feeding frenzy, I think, among professional services firms. And that would include law firms, consultancies that were unregulated, large accounting firms, lots of firms got in on this. And the buzzword at the time was definitely “consent”. People were saying: ‘You need consent to process data, so we’re going to write your privacy notice to say that you consent to this and you consent to that.’
I think a more mature understanding of GDPR would be that consent is one of the options, but it’s often not a very good option for many businesses, depending on what it is that they’re doing. So that would tend to be a bit of a red flag for me.
Now, if you’re in Canada, ignore everything I’ve just said. Because in Canada, the equivalent law to GDPR is a federal law called PIPEDA – the Personal Information Protection and Electronic Documents Act – is the federal data protection law. There are a couple of provincial laws that replace it in British Columbia, Alberta and Quebec. Those laws are premised on consent first. The Canadian conception of “privacy” talks about consent non-stop. So, if you’re in Canada and the person you’re talking to says it’s got to be all about consent, they are probably right. If you’re in Europe, and if you’re in the UK or the EU and someone is talking nonstop about consent, they’re less likely to be giving you good advice.
DR: I remember you told me about the other pillars of GDPR, other than consent, and I’m laughing because I can’t remember what they are. You mentioned there are other things you can do to make sure that you’re GDPR compliant, it’s not just consent, there’s also…?
TF: What we’re talking about is the legal basis for processing data. So, whenever you are processing personal data about anybody, you have to have a legal basis for doing that. And the legal basis under the GDPR could be consent.
It could also be because the processing you’re doing is necessary in order to carry out a contract with the person whose data you’re processing. A simple example would be: you fill out an order form because you’re going to buy something from me and you put your name on it. That whole order form, what’s on that form, becomes personal data about you. I, as the business, am going to process that personal data about you just by storing it in my system. I’m now processing data about you. Why am I doing that? Because I can’t fulfil this contract with you unless I process that data.
Essentially, we’re signing a contract. You need to know who you’re signing the contract with, so that’s necessary. In that case, it’s not consent that I’m relying on. I’m relying on the fact that I’ve got a contract with you and this is necessary to do that contract.
DR: Which is “legitimate interest”?
TF: No. Legitimate interests is a separate basis. With legitimate interest, there doesn’t have to be a contract in place. It basically means, for what I’m doing, I’ve got a legal and reasonable purpose for processing the data. That purpose is for my benefit as the business processing the data, or it’s maybe even for the benefit of a third party. But the interest we have in this data is legitimate and the impact on you as the data subject does not outweigh my interest in processing the data.
This is all a very roundabout way of saying basically: ‘What I’m doing is legal and it’s fair, and it’s not particularly harmful to you, and I’ve done a balancing exercise where I’ve actually weighed this up.’
What I’m not saying is: ‘Oh look, this isn’t a big deal, end of story.’ What I am saying is: ‘This is not a big deal because I have looked at this closely. I’ve looked at the impact this could potentially have on you as the data subject, and I’ve concluded based on this analysis that actually the impact on you is manageable or is minimal and it doesn’t outweigh what I’m trying to do for my business or for my customer’s business.’
Now, the Canadians do essentially the same kind of analysis, except they frame it in terms of consent, specifically implied consent. It arrives at more or less the same destination, but it’s just a different way with some different terminology around it.
DR: So, to recap, a red flag you should look for in when it comes to UK and EU GDPR expertise is when people only focus on kind of one area of GDPR, specifically consent. But also, in other places of the world, consent is actually quite a big part of being GDPR compliant or being data protection compliant.
TF: Correct. I think if the privacy notice that you’ve had prepared for you only talks about consent, or if it talks about consent in general terms without specifying what data is being processed while relying on consent, then…. Sorry, I don’t know how to summarise this Dayle. Every time I try to give you a rule of thumb when we talk about consent, well, I can’t even say there is one.
There’s very often you’re going to see consent talked about in a privacy notice, and it’s actually been done perfectly well. It’s just that I see a lot of privacy notices that have a lot of elements that work or that could work, but it does require some training and some knowledge of the area to identify: ‘Ah! That’s not a good application of consent, or that’s even a total misapplication of consent.’
There’s just no way for me to give a quick rule of thumb that says: ‘Look at your privacy notice and this trick will tell you you’re in trouble.’
DR: Which I guess is kind of the solution you’re trying to provide as well, right? Because you say it can’t be done so quickly. It has to require some sort of technical expertise.
TF: Yeah, I think so. I think it’s not so much technical expertise as a good understanding of GDPR, and I’ll tell you why. Because I think most GDPR knowledgeable professionals, whether they’re lawyers, consultants, whatever their line of work is, anyone who has worked with GDPR over a period of time will have probably found that their understanding and their approach to GDPR has evolved.
I think the early days of GDPR, when the law was first published in 2016, they gave us two years to get ready. They passed the law in 2016 and the law came into effect in 2018. That two years was supposed to be spent getting ready for GDPR coming into force and a lot of companies wasted most of that time. There was a huge flurry in the last six months before the start of GDPR (‘Oh geez, we gotta get ready!’) and when I talk about having a more mature understanding of GDPR, I think the entire industry has developed a more mature understanding of GDPR.
And I think most professionals who wrote a privacy notice or gave some advice to a business in the early days 2016, 2017, 2018, they probably would give different advice now because they’ve come to understand some of the nuances, some of the problems that come from choosing certain approaches to GDPR.
The initial instinct people had was to go for consent because, instinctively, that makes sense. If I’ve got your permission to use your data, how can this be a problem? I think that’s what caused the mad rush towards consent in the early days.
Legitimate interest was looked at by a lot of people as being a basis that you would rely on us as almost like a last resort if consent didn’t work. I think most of us have probably turned that completely around and thought, for businesses, they’re probably going to want to rely on legitimate interest and go to consent only as a last resort.
Because consent is difficult. It’s very difficult to manage. It’s difficult to get valid consent. You then have to manage the consent, because if someone turns around and says: ‘Actually, I withdraw my consent’, you just have to stop what you’re doing and with their data. You have to prove that you’ve got a system in place to manage that, because you can’t just have requests coming in and falling into a dark pit never to be never to be processed.
Consent is something that people can give to very specific activities. They can say: ‘I give you permission to do this but not that.’ Again, how do you manage what they’ve consented to and what they haven’t without having really efficient records-keeping?
Legitimate interest doesn’t have nearly that level of complication. Over time, I think what we’ve seen is the advice that people are getting, generally speaking, from GDPR consultants has shifted.
If businesses are still relying on the advice they got in 2017, 2018 when they were first getting ready for GDPR, that might be actually one of the red flags – you might want to actually have a second look at that because the understanding has shifted. Also because the way that data protection authorities across the EU and in the UK, i.e.: the way they’ve approached GDPR, has also, I think, been evolving.
I don’t think the ICO was ready on day one for GDPR. There was a lot of stuff on their website that was out of date as of the first day of the GDPR. It would have things like, essentially, ‘We haven’t written this guidance yet for GDPR’, ‘We haven’t updated it yet for GDPR’, etc. I think they’re pretty much caught up, but it’s taken them some time to update all of their guidance to reflect the GDPR.
If the ICO couldn’t even be ready for day one, and if their understanding has been evolving, and if the way that they’re approaching the behaviours that they’re seeing is evolving, then it stands to reason that those of us advising businesses are going to have an evolving understanding as well.
So, if you got ready for GDPR in 2017 or 2018 and you haven’t looked at it since, then two things. Number one: I think the understanding of the law has probably evolved since then, Number two: that’s 3.5 years since you got ready for GDPR – are you sure that your business is doing the same things it was doing 3.5 years ago?
I think you’d be pretty surprised how many of your data handling practises might have changed. You might have changed the apps that you use. The business report services that you use that handles personal data on behalf of your business, those have probably changed. How many of us had even heard of Zoom, Asana, Slack? I’d never heard of Slack before the before the pandemic started! Slack’s been around since well before the GDPR.
People are adopting new apps all the time. They need to be updating their records. They need to be updating their privacy notices to account for that. And if what you did was you got a GDPR project that got done in the early days and then just let it sit there since then, it probably needs a refresh.
DR: Two questions linking back to the actual proper FAQ. Sorry to go on a tangent. EU and UK GDPR Representatives – are they two different things? Do I need both?
TF: If you are located outside of Europe – let’s go back to the Canadian example – you will need both if you are selling into both the EU and the UK. So if you’re selling to consumers in both the EU and the UK, you will need representatives in both the EU and the UK.
DR: And if I’m a business in the UK, presumably I only need the EU one? And likewise, if I’m in the EU and only selling to the UK, I would then only need a UK GDPR representative?
TF: Correct, unless you’ve got an office here. If you have an establishment in the UK you don’t need a Rep. If a UK company has an establishment in the EU, it does not need an EU Rep because it’s got an EU address effectively, so it’s already got something there.
DR: The second question, I know you’ve answered it already, but I was hoping maybe you could drill down a bit if you’re able, maybe give us an example. So I already asked the question: ‘What does a UK GDPR representative do?’ And you explained your kind of like the mediator or the facilitator or…
TF: …or the contact point?
DR: Yes! The contact point. Sorry there, I should be using plain English, shouldn’t I? The contact point for these businesses. Are you able to explain what a GDPR Rep would do if a client or a client’s customer actually contacted you – what would actually happen?
TF: An example would be, you’ve got a UK customer or potential customer. Maybe somebody you’ve sent a marketing email to and they go: ‘Who is this company?’ So they go to your website and they see on your privacy notice; ‘If you’re in the UK, contact our representative in the UK – Plain English Law – you can contact them here.’
Next that person might write to Plain English Law saying: ‘I received an email from this company. Who are they and what information do they have about me?’ What your Rep will do for you partly depends on the service level you’ve paid for, but the basic function is for the Rep to turn around and forward that correspondence to you, because it’s you that needs to answer the data subject’s question.
Now you might answer that question back through Plain English Law, and you might need some help to figure out what is the correct answer to that question. Because if you’re a Canadian company, you’re accustomed to the Canadian way of responding to data requests from people. The rules are different under the GDPR than what you’re accustomed to. So you might not know what are the time limits are? What do I need to respond with? How comprehensive does my response have to be? Is there information that I can withhold? Can I outright refuse in some circumstances? Can I charge a fee for replying to it, etc.?
All of these kinds of questions, if you’re not located here and you’re not regularly dealing with GDPR, you probably wouldn’t readily know those answers. We, as your UK GDPR Representative, can advise on that.
But ultimately, what has to happen is someone has to reply to that data subject. And either you, as the business holding that data, you could do that yourself once you’ve been handed the correspondence by us, we relay it to you. Or you could ask us to respond on your behalf.
DR: Would you say the value-add isn’t just being a contact point? It’s also being able to being able to help respond correctly and in the right way?
TF: Exactly. Help responding correctly and on time with all of the required bits of information that the GDPR requires you to respond with.
DR: That’s the true value because anyone can just say: ‘I’ll be your representative.’ But if it was Joe-Bloggs-off-the-street and people send messages to Joe-Bloggs-off-the-street and they don’t respond properly, again, that could be a bigger problem than not having the representatives at all. Actually having a representative that knows what they’re doing and can advise on how to respond is the real true value of the service.
TF: Yes.
DR: Cool. I think you need to say that right? (laughing)
TF: Ok well, I wouldn’t say it’s the “true value of the service”. It makes the service more valuable. The primary value of the service is complying with the bit of the GDPR that says you have to have a representative in the UK if you don’t have an office here and you’re selling to UK consumers. That’s the essential rule.
DR: I guess maybe I’m being too salesy about it. From my point of view, it’s a hygiene cost that’s been added to businesses. It’ll be very frustrating because no one likes having hygiene costs for their businesses. But if you can say, actually it adds value, then people are happy to pay for it. Does that make sense?
I think the difference between some of the bogus people that I’ve spoken to and yourself is you actually have the values and the understanding to make sure it’s done correctly. Not just being the contact.
TF: I’m not going to suggest that other people don’t know what they’re doing. I’m going to suggest that I am able to explain things in ways that make sense to business, and are practical for business to implement.
I think other people who are offering a UK GDPR representative service, many of them will do a perfectly fine job. It’s just a question of who you would rather deal with and whether you’d like to get that service in plain English or in GDPR-speak.
Even for someone who is adamant about doing things in plain English, talking about GDPR in plain English can cause a brain-sprain at times because the way the rules are phrased. It is very difficult sometimes to stay in plain English when you talk about this stuff and put it in terms that make sense to the business, rather than someone who’s really interested in technical rules of GDPR.
But what I would say is that the primary reason to appoint a GDPR Rep is simply to comply with the requirement to have a GDPR Rep, however, what that GDPR Rep does for you once someone does contact them, I think that’s where the differentiator could be. What kind of support are you going to get in responding to that request?
You could look at the GDPR Rep as effectively just being a post box, and if that’s all that you’re getting then that may or may not be enough for you. But if you were a smaller business, if you’re a business that doesn’t have a location in the UK, chances are you’re not going to have total expertise in UK GDPR requirements.
How will you respond when somebody submits a data subject access request? They want to know what data you’ve got about them, they want to copies of that data, they want you to erase their data. There are a number of exceptions to that requirement – do you know about them? For example, someone says: ‘Delete all my data.’ Do you have to actually do that? There are a surprising number of exceptions to that requirement.
DR: And in this instance, a UK GDPR representative with a certain skill set and experience level will be able to help advise on that?
TF: Exactly because chances are you’re not going to get a massive number of UK data requests unless you’re a huge company. Those times when you do get those requests, because they will be probably few and far between, it means you probably won’t build the expertise to respond to them efficiently and correctly.
That’s where having that relationship with a UK GDPR Rep who’s got that knowledge, who can advise you on what the appropriate steps are and what the correct responses are, that’s where that value is going to come in.
—
Transcript of Part 2 end
Episode Title: “DSARs for Businesses: What to expect and how to prepare.”
Description:
The GDPR gives people the right to know what personal data any company or organisation holds on that person.
A DSAR, or data subject access request, is how people ask to see this data. All businesses are obliged to respond to DSARs in order to be GDPR compliant.
The number of DSARs being filed is increasing every year. Now more than ever, businesses need to understand their obligations and have a dedicated process ready to respond to DSARs effectively.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 25 May 2021
Recording Length: 00:20:48
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of GDPR podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. In this episode, we talk about DSARs, or Data Subject Access Requests. (In plain English, that’s when someone asks you to share copies of data you have about them.) Dayle and I discuss what DSARs are, why people make them, and how GDPR compliance is as much about the process as the product.
DR: …when we had our last conversation you were mentioning how, if an employee were to leave for whatever reason and they make a data subject access request, emails for example may also include other employees’ personal information. How do you know what to give to the employee who made the request?
TF: What you have to do is figure out, first of all, what personal data you have about the data subject who made the request. If I’m the employer, this means itemising the pieces of information I have about that employee: I’ve got this list of emails; I’ve got this specific document, for instance, an annual review in their HR file.
The thing is, now someone needs to read that annual report and figure out if anyone else’s name is in there. At minimum, consider the person who wrote that annual review – this is also personal data about them because they wrote it.
DR: So, I assume the person doing this itemising would be a manager, or would it be the person who wrote the review, or who made the request?
TF: It could be both, it depends on the process. The process I went through with my last employer, I was the line manager of a team of about 10 people, but obviously I had my own line manager. So I went through the quarterly and annual process with my line manager evaluating me, and I did it for my direct reports.
So the reports that get generated included input both from me and my direct reports, and it could say any number of things. If you’re being careful about it, you’re not naming other people, but you can’t guarantee that. There has to be a process before we just dump all this information into a data subject access request. Somebody has to go through it and read it and flag any areas where the report is about some third person, not just about the employee making the request. There’s going to be personal data about the person who wrote the report and it could possibly name other people directly or indirectly.
Let’s say an employee has complained to me about, ok let’s take an example: Jim comes to me and complains about Anne’s conduct. We might have an email exchange back on forth, and it might not even have Anne’s name in it, but it could be clear from the context who we’re talking about, and that makes it personal data about Anne.
So, who’s making those assessments? First of all, you have to decide whether to give it to the employee or not. And if you’re going to give it to them, what are you going to redact out of it?
DR: I thought the rule was that if I, as the data subject, request data about me, it has to be given. Is that not right?
TF: No. There are plenty of exceptions. You can refuse to give information to the data subject after the request if doing so will infringe the rights of others. This is phrased fairly broadly. For example, Dayle, you make this request to me and say you want all the information I have about you. So I locate this document and think, yes, this is clearly personal information about Dayle. But if this report also has in it my opinion about somebody else’s behaviour, that report become personal data about them. Dayle, you may or may not even realise that this information about the other person is in the report. It may or may not be relevant to you and, even if it is relevant to you, does your interest in having that information outweigh the privacy interests of the other person who isn’t even involved in this request?
DR: I have another question. I can’t imagine ever asking for data about me from an employer or former employer. Why would someone do that? What is the issue that makes someone make a data subject access request? What’s going on there?
TF: Ok. Under GDPR, the ‘why’ doesn’t matter. But for general interest, there are all sorts of examples, like maybe an employees is a little bit paranoid and may be worried about what people are writing about them in their HR file.
You’ve got other situations when the person is not paranoid at all, rather they’re in a conflict with their employer. Maybe they’ve been made redundant, or maybe they’ve been through a redundancy consultation process and they don’t like the final result, for instance, finding themselves in a group of employees they don’t think they should be classed in for the purposes of the consultation. They may want to see how this decision was made.
So, one of the ways they could maybe get at that is to say to their employer: “Look, I’m not going to fence with you, I just want to see what personal data you’ve got about me because the GDPR says, as a data subject, I can make that request.” The GDPR also says the employer has to fulfil that request, subject to some relatively narrow exceptions. It’s those exceptions where the employer can have difficulty.
When GDPR was new, I think it was a common reaction for employers to say: “I’m not going to respond to that data subject access request because the employee is suing or they’ve filed an employment tribunal case.” That is not an appropriate response. There’s nothing in the GDPR that says data subject access requests are invalid when there is also a tribunal case going on. You still have to fulfil that request.
Now that we’re deep in the GDPR era, it could be that employees are more likely to make those data subject access requests because they are more aware of those rights. But those rights have been around for a while. Data subjects have had the right to ask for access to their data, and it’s always been theoretically possible for an employee to turn to their employer and say: “Give me the personal data you have about me.” – they just haven’t been doing it.
I think what solicitors for employers are seeing more and more is that this is becoming a, I wouldn’t say an automatic thing, but more and more solicitors are telling the employees to do this as one of the first steps. Whether the employee has been made redundant or they’ve been terminated with cause, or there’s been a grievance or disciplinary process that the employee has been through, there are going to be records from that. And there should be records so show why this person was terminated and what the steps of that process was. The employee could be wondering what the HR member wrote about them or what other people said about them – if that information is sitting in the employer’s files, the employee has a right to see it [unless the employer can point to a valid exception].
DR: Is there a time limit on this? What if I wanted to ask a company I was made redundant from years ago?
TF: Good question. For you as a data subject to go to your ex-employer and say: “I want to see what personal data you have about me”, there is no time limit on that. The limit is whether or not they still hold information about you.
Anyone at any time can go to any organisation and say: “Here’s my name. Are you processing any personal data about me?” And by the way, “processing” doesn’t mean they have to be doing anything with your data – just having your information in their file is a form of processing.
Ok, so your questions to the organisation would be: “Do you have information about me? If so, what do you have?” Anybody can ask that about any organisation. The answer will either be yes or no, we have information about you or we don’t have information about you.
Dayle, in your case since you worked for them, it’s pretty clear they did have personal information about you at some point, and they may or may not have deleted that information, or anonymised it, or purged it from their records somehow. You always have that right. 30 years from now you could go to them, identify yourself, and ask them to look through their files and see if they have anything about you.
DR: Ok, so how would that work? Would that entail them sending me a whole ton of paperwork or batches of emails to look through? From an employer and HR perspective, I can imagine looking through everything would be pretty time-consuming for them?
TF: You’re right, there is a certain point where the employer can say: “Look, the effort required here is disproportionate”, or if the request is abusive or repetitive from the data subject. At a certain point the employer can say: “We’re not doing this because of these reasons.” But those reasons are fairly difficult exemptions to rely on.
The presumption is the employee is entitled to that information – you at least have to try to do a search through your filing cabinet and your emails. Search for the person’s name and see what you come up with.
And that’s just it – the employer then has to document somehow that they’ve actually looked through their records before they reply. They can’t just give a boilerplate response and say: “We’ve searched our records and we can’t find anything about you.” If that’s the response they send, they better have searched their records, they better have done what they said they did in that letter.
If a response a data subject access request isn’t credible and the employee complains to the Information Commissioner, the employer will need to demonstrate what they did exactly to respond to your request, that is, the steps they took to look for and supply the information.
DR: But how would you do that? How could you prove you did what you said you did? What about looking through the server log? Would that be the easiest way?
TF: I suppose? This is definitely where you are exceeding my IT and cybersecurity expertise. Let’s think about it though. Could you lie about what you’ve done and get away with it? Well, I imagine people do that all the time.
DR: Ok, I guess my question was less about ‘lying’ and more about, you know, the employer saying: “I sent Margie down to the filing cabinet. She had a look and didn’t find anything. What more do you want me to do?” That kind of thing.
TF: I would guess the ICO (Information Commissioner’s Office) would probably say: “Well, let’s have a chat with Margie then.” But I think we’re kind of going down a bit of a rabbit hole here. (laughing)
I think the principle really is: if a data subject asks you to look for information, you need to have a process for doing that, and demonstrate you’ve actually followed that process. You normally do this by keeping records. Employers should have a written process that says: “When a DSAR comes in, it goes to this department; these are this steps this department takes; these are the different places they need to look.”
DR: Ok, so should people have DSAR training? What if I, as an employee or former employee, called up reception at my current or old company with a data subject access request, and the receptionist says: “Hi Dayle. You want your data? Sure, just leave it with me.” The company, not just the receptionist, has to do this within a certain amount of time, right? My request can’t just sit there in reception?
TF: Correct. I wouldn’t go so far as to say that everyone needs DSAR training, but that’s part of the process we talked about before that the organisation needs to have in place. They need to think about where these requests are likely to arrive from.
So, if they’ve got a properly set up privacy notice on their website, for example most organisations have their own website, it will say: “If you’ve got questions about the personal data we have about you, contact privacy@xyzcompany.com or what have you. Here’s also a postal address and phone number – ask for the Data Protection Officer or the Privacy Team”, for example. If you provide that kind of information on the website, then that’s great.
The next step is, every member of staff should know that when someone is asking about personal details or about privacy or about what the company knows about them, then they should know the place to point them to. If it’s an employee, I would point them to the people team or HR. And absolutely every organisation’s HR team should have, if not a GDPR expert, certainly a GDPR champion – somebody who’s got enough awareness to be able to flag issues, recognise that what we’re dealing with is a personal data issue, that it needs to be routed within the company correctly, and knows where and who to turn to.
That GDPR champion within HR would then work with the privacy team. But maybe you’re a smaller organisation and don’t have a separate privacy team – you need to have one person who understands enough about privacy issues to be able to handle the issue for the company. Whether that means referring it out, going out and finding some expertise when needed, or whether they’ve got enough expertise to handle it in-house, either way you need a ‘privacy point-person’, and everyone else in the company needs to know who that is. Everyone needs to know who and where to route these requests.
DR: I assume the privacy person could get some kind of badge?
TF: Maybe a sash? Or a tabard like a fire warden?
DR: If it were me, I’d want a cloak and a sceptre. A data sceptre. It would be like a large USB stick with a hand-hold.
TF: An encrypted one, I hope. So yeah, you were asking about GDPR and how that plugs into DSARs (data subject access requests), how DSARs come up and why an employee would ask or file a DSAR. I think the most common scenarios would be redundancy, discipline, possibly even that they didn’t get a promotion that they thought they should get – DSARs can come from people who are still working for you. Maybe they’ve received a poor performance rating and they want more information.
There are all sorts of different scenarios that people could suddenly think up that this company or someone within this company has written something about me or has got something in their records that says something about me, and they want to know what it is.
DR: These are things that I would never have thought about, if I’m honest.
TF: And honestly, I’d never thought about it either until I actually saw it happen. A company I was working for, probably a year or so after the GDPR came into effect, we had at least two of these ex-employee data subject access requests going on at the same time. And this was an organisation that had resources. It’s not like it was a small operation; it was a big company.
So, it had the resources to handle it, but that doesn’t mean it had the processes to handle it efficiently and, specifically, in making sure that the request was actually routed to the correct place so the request could be dealt with in a timely fashion.
You know, you only have 30 days to respond to a data subject access request, and that sounds like a lot of time but it’s not. It’s not, especially if the request gets lost for the first 15 days because someone didn’t know they needed to forward it someone else.
DR: 30 days – is that working days or calendar days?
TF: It’s calendar days.
DR: So, Saturday, Sunday, Bank Holidays – they’re all included? 30 days, that’s it?
TF: 30 days. It’s quick. 4 weeks functionally, so it disappears in a hurry.
The point is the importance of having a DSAR process in place before a DSAR comes in. It doesn’t have to be a massive training programme that everybody goes through to learn about data subject access requests. But what everybody probably does need to know within probably every organisation: everybody should understand what personal data is, they should be able to flag when they’re handling it, and they should definitely be able to flag when they’ve been asked to provide information that involves personal data.
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Episode Title: “Business Apps & Data Privacy: Free Trials Aren’t Always Free”
Podcast Description:
Have you read the T&Cs on that business app you’re using? How about your CRM system?
Do you know who is in control of your customers’ personal data: you or your app vendor?
In this episode, Dayle and Trevor discuss the data privacy pitfalls contained in common applications’ T&Cs, and the questions business owners should be asking before agreeing to that free trial.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 27 July 2021
Recording Length: 00:12:24
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of GDPR podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. In this episode, Dayle and I discuss GDPR risks that are embedded within the mobile and web apps that businesses use every day. What apps do you use? Do you know what data they collect from your device and your business when you use them? And who’s behind each of those apps? Finally, if you read the terms and conditions, what are you agreeing they can do with the personal data that the GDPR requires you to protect?”
DR: Okay, so like I said, I sent you some questions about two major players in the field of CRMs that I know a lot of micro and small and maybe a medium sized businesses would use.
And in their policy you point out two things that most customers wouldn’t be aware of. So the first one was: “You grant us the perpetual right to use customer data in anonymous format.” … and the second one was: “Supplier may use client data in an aggregated or anonymised format for research, education or other similar purposes.”
And you were saying that that’s actually a problem for most businesses, because it means that the data is actually shared in a way they may not be aware of, correct?
TF: Yeah, and it is sort is buried in the terms and conditions and I think a lot of people, a lot of businesses wouldn’t look very deeply at the terms and conditions of most products that they purchase.
Because who’s got the time to read page after page after page of terms and conditions for vendor after vendor after vendor?
The problem is when you’re when you’re using any kind of app, whether it’s a web app, or a mobile app, you’re putting data into that app. Some of that data is going to be personal data, maybe all of it will be, and each one of those apps will have its own storage location.
So basically, the more vendors you have, the more storage locations you have and the more terms and conditions you need to review to see what rights have you given the app vendor to use the data that you put in.
And some of these terms like those ones that you quoted, they sound pretty innocuous because it says, well, hey, you know we’re using it in an anonymised form. The problem is there is no way to reliably anonymize any data set these days.
There are studies out there that I don’t have to hand at the moment but have shown fairly reliably that if you have two or three pieces of what seem like generic information about a person, such as a post code and their gender, you can use other publicly available information on the Internet to narrow down that person to a specific individual something like 85 or 90% of the time. It’s really scary.
So, anonymizing the data just by taking someone’s name off it doesn’t actually anonymize it most of the time.
And you, as the customer of an app where you’re sticking data into that app, you’re still responsible for that data. If you’ve agreed terms and conditions with them, let’s say they can use this data in an anonymised format, you’re still on the hook.
If someone else, whether it’s the vendor or somebody else that the vendor is working with, manages to reconnect or decides to put the effort into trying to reconnect data points with individuals using other data they can find on the Internet, that’s still personal data even though it’s been anonymised. You’re not off the hook by having agreed that. You need to be looking at those terms and conditions. You need to do your due diligence.
DR: So, I’m going to ask a very challenging question. For these major CRM providers, where their terms and policies are quite lacking in terms of GDPR, what would this solution be? Now that we know what to look for, what is the alternative?
Here’s a scenario: I’ve been in business for 6-7 years and I’m using one of these platforms. I’ve been using it for quite a while and a lot of my workflow and sales processes goes through these systems. To now be told that actually there is a potential risk to my business, what would the solution be? Would it be some kind of mapping procedure? Or some kind of…?
TF: Well, exactly. This is where all GDPR compliance starts: with data mapping. That is, figuring out and writing down what data do you have, where you’re storing it, who the vendor is, why you have this data, is the data up to date, and so on.
Every organisation that has personal data is required to keep what’s called a record of processing activities (ROPA) – it could be in a spreadsheet, it could be in a database, it doesn’t matter. It’s effectively a chart that shows what data you have and where you’re storing it while you have it.
And you need to keep that up to date because almost every week we will come across a new app that we think, hey, that could be really helpful. It fills a need for my business. And of course, they all give you free trials. So, you start a free trial and you think, this is great, I’m going to give it a go and you put some information in there – if you don’t record the fact that you’ve done that, you’ve now created a new set of personal data that’s being held by a third party vendor. You’re still responsible for that data, and yet you’ll probably forget about it the moment you decide to abandon the free trial, which you will do a fair percentage of the time.
This is the same situation if you decide to move on from an app after using one for a long time. CRMs are a great example. CRMs change all the time. Maybe they changed their business model or their pricing model or they’re just doing something different now, and a CRM that you really liked five years ago isn’t a great option for you now so you decide to move on. Did you clean up the data you left behind on that CRM? How do you even know to clean it up if you don’t have the data mapping done and kept up to date before you start looking at new apps?
Part of this process, by the way, long before you stick the data into an app should be to ask yourself: “Who are these people?”, as in, who is the company that runs this app? And what are the terms and conditions? What are they going to do with that data? What rights are they claiming to use the data that you stick into that system? You have to ask these questions before putting anything in there in the first place, even in a free trial.
DR: Can I ask a follow up question? So, does that mean it’s not necessarily all doom and gloom if you’re already using the system that’s already ingrained into your business, you can still technically use them, providing you do your due diligence, right? So, let’s say again, you’ve been using one of these CRMs that are quite common. Then Plain English Law comes over, looks at the CRMs’ terms and conditions, and says its lacking from a GDPR compliance perspective. Is it panic time? Is it a case of ‘oh my gosh the house is on fire, we need change CRMs, we need to go to another provider.’ Or is it more a case of ‘okay, we can still use it, but we’ve got to get these things in place to make sure that you legitimising the use of it’. Is that what you’re saying?
TF: Yeah. So, first of all the good news is, I’m describing a situation that practically every organisation finds themselves in at some point. Discovering or realising that you’ve been doing this and using apps without checking their terms and conditions first, even if you find some unacceptable terms and conditions, it does not mean the Information Commissioner’s Office is going to be sending people in windbreakers down to your office to seize computers and slap you with a fine of €20 million or 4% of your turnover.
DR: Remember how I said I imagined this? Guys coming down from helicopters?
TF: (laughing) Yes, exactly! A lot of GDPR compliance scaremongering that’s been going on over the last three or four years gives you that image like, if you put your toe over this line your toe is going to get chopped off, and that’s absolutely not how it happens.
However, that doesn’t change the fact that you need to be looking at these things. You are responsible for demonstrating that you’ve turned your mind to it, that you’ve actually looked at the terms and conditions and thought through what are the risks involved in using this vendor, or in allowing data to be used this way, or in allowing the vendor to reuse the data in some other way? You need to be thinking that through.
And the first step to that, I think, is asking yourself, who are these people? If this is just a website when you first get there, do you know who runs that website? Do you know where they’re located? Do you even know the name of the company that you’re dealing with?
DR: Wait, so let me write this down. Who runs the website? Who owns it? I’m guessing you need, if it’s in the UK, you need a company number and where their base is?
TF: Yeah, and sometimes that is sometimes the biggest flag is the fact you don’t have that information, or even a postal address! A lot of websites, particularly from North America, don’t include a postal address – it’ll say something like, you know, “copyright, thewebsite.com” – but thewebsite.com is not a company name. There is a company behind that site that owns thewebsite.com, but who is that company? Where is their office? Where are they registered? You’re dealing essentially with an anonymous service provider.
Until you can identify who owns this thing and who’s running it, and until you’ve done at least that and then figured out who you’re dealing with, what are the terms and conditions, what am I agreeing to, you shouldn’t be putting any data into that website at all. You might sign up for the trial, but the second you put your customer data in there, you’ve just handed it all over to a total stranger. That’s what a lot of us are doing today and we have to stop it.
The enforcement of GDPR been relatively light touch and been relatively focused on seriously problematic vendors doing really offensive things. But you look at news coming from across the EU and the UK itself, and you’re seeing that gradually the enforcement is getting more and more, you know, turning their eyes to sloppy practices basically. It’s not that by doing these things you’re doing something malicious, it’s just you need to be more diligent.
You need to be more careful about who you’re giving your client data to. It’s just a matter of time before a growing number of data protection authorities start asking why are you doing that and asking you to justify what it is that you’ve done with that data.
And I know we’ve left the EU and I know I’ve brought up EU data protection authorities. But the fact is, if you’re doing business with people in the EU you still have to comply with the EU’s version of the GDPR, which is basically the same as the UK’s. It means you can’t just say ‘Oh well, I don’t have to worry about the French data protection authority’. Yes, you do. If you’ve got customers in France, you have to worry about them.
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Episode Title: The Plain English Difference: Part 1 of 2
Podcast Description:
Standard contract templates might seem like a time-saver. But if they are written complicated legalese, they can irritate your customers and harm your business.
If it’s difficult to understand, it can easily be ambiguous, too. This creates headaches for customers, puts strain on business relationships, and can end up trashing your reputation.
In this two-part series, Trevor Fenton shows how taking the time to write commercial contracts in plain English is better for your business, your brand, and your bottom line in the long-run.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 16 Aug 2021
Recording Length: 00:24:05
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. Today it’s Part 1 of a two-part podcast called ‘The Plain English Difference’. We talk about how I became interested in the ‘plain language’ movement, re-write some legalese into plain English, and discuss how writing a contract ‘for the judge’ might not mean what you think. Part 2 of this podcast is also available on the Plain English Law website at https://plainenglish2026.temp-dns.com/podcasts/
DR: So, “Plain English Law” – that name is pretty straightforward. Tell me about the idea for that? Obviously it means ‘commercial law without some of the legal mumbo jumbo’, but did you have a defining moment or time? As in, when you thought the legalese had to stop and that it could be done in a different way?
TF: Well, the ‘this has to stop’ moment was probably the first time I tried reading software on a software package that I was opening back in the days when you actually received software on floppy discs. And I was opening the package and you start reading the terms and conditions on the outside of the package, half of which are written in all caps, and it’s very, very shouty. The sentences are very long, it’s full of legal jargon, full of technical jargon, and I’m looking at this, you know, probably like most people thinking: “They can’t possibly think I’m going to read this?!”
And at some point later in my adult life, when I was in law school, I was fortunate enough to have a law professor who was very much committed to drafting legal documents in plain English. Whether you were talking about contracts or wills or letters, even an email written by a lawyer – you can tell a lot of the times that the email was written by a lawyer just because of the style that they use in writing that email to their own client. You see the word “shall” a lot, you see a lot of passive voice, a lot of long, artificially formal sentences written in ways that nobody would ever speak to you. And even the lawyer who wrote it would probably never speak to you that way. So why are they writing to you that way? It’s a bit jarring.
And so this professor was committed to teaching us how to write in plain English. And I thought this is great. There is a plain language movement that started, surprisingly enough in the US I think, and the US government’s been banging the drum for plain language documentation, plan language legislation as well. So when they draft laws down there, the intention is to write it in language that typical, you know regular people can understand and that hasn’t been the way things have been done historically. So it was a big shift for lawmakers, for legal drafters and for lawyers to start thinking about writing things in more standard everyday English, instead of writing them in this artificially formal pseudo-Shakespearean style that lawyers are known and maybe not loved for. So I saw some hope there.
You know I trained as a lawyer initially in Canada and I saw how it is that lawyers get their jobs done. And then I started to understand why the legalese persisted. Because a lot of lawyers, most lawyers, don’t draft contracts from scratch. They use databases full of templates, full of precedent contracts that have been in use and recycled for decades. Or in some cases, some of these clauses that you’ll find in these contract templates, go back even a century or more.
And so they were written by people in a different era when this was expected and considered normal, that is, a normal way of writing even business correspondence. If you look at a business letter written in the early 20th or late 19th century, it’s very formal. It’s totally different from anything you’d see businesspeople writing to each other today. Legal documentation hasn’t made that transition quite in the same way to normal everyday English.
DR: Are there, when it comes to these kinds of contracts and templates, because obviously this is this is still ongoing, otherwise Plain English Law wouldn’t exist, right? It’s still a thing. Do you, or rather can you speculate? Do you know why it still happens? Or have you just explained? Sorry, maybe you explained that in your previous answer. Is it because basically lots of lawyers use these kind of precedent law contracts and then reuse them and then don’t update them? Or is it a case of a certain level of fear or posturing? Do you know why it continues like that?
TF: Yes, all of that. And I would also add: it takes time to update these things. So it’s all of what you’ve just said. Number one it’s fear. Ok, if you’re a young lawyer and you are learning how to practise law, you have to remember you’re also learning how to practise law profitably, which means you have to get your job done. You’re asked to produce a contract. You need to produce that contract for your client efficiently enough that the bill will be tolerable to the client. Most law firms will bill on an hourly rate, so if you take too long because you’re trying to take this contract template that you’ve been handed and you’re trying to make it better, the question is, is your client willing to pay for that?
I personally think more clients would be willing to pay for that than we assume, but it takes time. And so the fear is… there are couple of fears. Number one, my client is not going to pay me for all the effort that it takes to hammer the legalese out of this. There is the fear my client will not value a plain language contract.
I think that’s probably mistaken. At least I hope so anyway! (laughing) I’ve started a firm called Plain English Law on the belief that there are clients out there who will pay for this.
DR: No, I’m inclined to agree. As you know, I’m a small business owner and you know, I did the typical thing where I started using templates and contracts templates initially because they were quick and easy and accessible, and I can modify them a little bit. But yeah, I was quite lost in the wordage like the “herewiths” and the “vis-à-vis”. And I know what all those words mean, but when it’s in a written form you’re just like, whoa.
TF: It’s intimidating.
DR: Yeah, it is. And so in your experience, are there any particular phrases or words that constantly get used even to this day that you wouldn’t consider ‘plain English’. Are you able to expand on them, explain what they actually mean.
TF: Well, there are a number of them.
DR: What ones do you particularly dislike maybe? You see them and you’re like, “Why is that even there? That doesn’t work.” Does that make sense?
TF: Ok yes, well the one that drives me that nuts probably more than anything is the little phrase: “For the avoidance of doubt.” So, you’ll be reading along through a contract and then you’ll get to a point where it says: “For the avoidance of doubt…” and then it’ll go on and essentially restate something that had been said before.
I don’t know if you’d call this a sort of verbal tic or an almost a written form of clearing your throat. I don’t know what you’d call it, but it’s not enough to wonder what value those four words add, it’s wondering what value does the rest of the sentence that follows those four words add?
Because what you’re essentially saying, as the contract drafter if you are putting those words into a contract, in my view you’re saying: “I’m not sure. I think I might have left some doubt with the last sentence of the last paragraph.” Well, if that’s what you think you’ve done, then maybe you need to re-draft that last part and remove the doubt in the first place. Instead, you’re putting “For the avoidance of doubt…” and then lengthening the contract in the process.
And even worse, you’re quite possibly rephrasing or slightly recasting something that you’ve already written about. And when someone comes along later, if this contract ever ends up in front of a judge, which is pretty rare, by the way, but you know it, it can happen. More likely, if your customer or your supplier or whoever else you’ve made this agreement with, if they pull this agreement out of the drawer and read it, they’re going to come across this and they’re going to say: “Well, which version am I supposed to pay attention to? The bit that caused the doubt, or the bit that’s supposed to resolve the doubt?” One issue resolved in at least two different ways in the same contract is a recipe for confusion and possibly conflict.
So yeah, that should be your red flag, I think as a contract drafter, pause after you want to put those words in. It says that you’re not comfortable with what you have drafted. Immediately stop, put the pen away. Go back. Fix it.
DR: Can I can I touch on something you mentioned there because you know we’ve mentioned this in previous conversations and I think it’s interesting to know. Why is the..? There’s the phrase, you know, “the contract is written for the judge”. Why is that a poor excuse?
TF: For a few reasons. Number one, of course you write for the judge, but the judge is a human being, just like your client or whoever you’re writing the contract for. Let’s put it this way: if your client understands the contract, give the judge a bit of credit. They will probably understand the contract as well, so writing it in a language that’s more accessible to your client is not going to put it out of reach of the judge, so you can write it for both.
Secondly, judges would probably thank you and thank all of us to stop, quote-unquote, “writing for the judge”. Because that’s when the legalese comes out, that’s when the jargon comes out, that’s when the Latin comes out. And I don’t know a whole lot of judges, but I’ve met a couple and I clerked for a couple of trial court judges when I was a law student, and they hate the legalese. They hate the long drafts because it consumes their time. They would love nothing more than to get concise, plain language drafting in everything that they get from the lawyers that appear in front of them. So that’s why drafting for the judge is a bit of a, well, I don’t think that drafting in a legalese style is drafting for the judge. I think you’re making the judge’s job harder and you’re making your client’s job harder.
DR: That’s fair enough. Going on a slight tangent. Do you have any examples of a non-plain English contract versus maybe a plain English version?
TF: Sure. First off, plain English is partly about being understandable and part of that, by the way, is just shortening the entire document because people get exhausted. So if you’re putting clauses or sentences into a contract that don’t actually help, that aren’t necessary, you’re just making the document longer and more tedious. And you’re making it more likely that people will start skimming through and miss the important bits because they’re buried in amongst nonsense that doesn’t need to be there. So I’ll give you an example.
My two favourite examples. You’ll find this in a huge number of contract drafts, somewhere near the top there will be a section dealing with ‘interpreting the contract’. And you’ll find sentences like this:
“Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.”
DR: Ok, I don’t understand what I said.
TF: Right! If I was to write this in plain language… Ok, first off, this sentence is utterly unnecessary. It shouldn’t be in the contract at all.
Now what does it mean in plain English? I’m just going to draft this in my head as we go because I haven’t actually drafted this. What it says is: “In this contract, if a word is used in plural form, interpret it so that it’s singular whenever necessary.”
Ok, number one: if you’ve written the contract that badly that when someone gets to a sentence, they’re not sure if this if you really meant it to be singular or plural, then that’s bad drafting. This clause doesn’t fix it.
I’ve challenged a number of lawyers to point me to a single case in any English-speaking jurisdiction where this clause (because trust me, this exact wording appears in billions of contracts out there, literally billions, because this is from a widely used legal database of precedents so this clause is in almost every precedent in that database, and that database is used by hundreds of thousands, possibly millions of English speaking lawyers.)… Ok, so I say point me to a single case where a judge has said: “Oh, that sentence helps. Now I know how to interpret this contract. Thank goodness for that sentence.” I’m going to say never-in-the-history-of-ever has that happened. This is a useless sentence.
Secondly, if you’ve drafted the contract that badly, this is a lazy person’s way of saying: “Well, rather than go back and fix my sloppy drafting, I’m going to bung this in here and just hope that it saves me when the judge comes across my lousy drafting.
Ok, second example. Right after that singular-versus-plural sentence, you will almost always find this sentence:
“Unless the context otherwise requires a reference to one gender shall include a reference to the other genders.”
So in other words, if I’ve written this contract in a way that confuses you so you’re not sure if I’m talking about a male, a female, or a non-binary person, or an other-gendered person, if I’ve confused you like that, please forgive me and just interpret this so it includes all of them.
Number one, what on Earth does that even mean? Number two, if you’re writing a contract and your writing is so gendered that you’re going to confuse people about which person you’re talking about in a sentence, then your drafting is so badly broken that, trust me, this sentence is not going to help anyone undo your broken drafting.
And again, I challenge any English-speaking lawyer to point me to a single case anywhere in the world where this clause and the billions of times it’s been used in contracts has ever helped anyone resolve: “What does this sentence further down the contract mean.” So this stuff… just knock it out. It’s absolute nonsense and it lengthens the contract.
And it causes your reaction, Dale. Perfect. I read the sentence to you – maybe if you had read the sentence yourself…
DR: No, I don’t think so. I think I could have read it and still been confused.
TF: And I think a lot of people would be as well. Because, first of all those words: “Unless the context otherwise requires…” Just the ordering of those words. Nobody talks like that, and almost nobody writes like that unless they’re writing a contract. Or, you know, pretending to be a lawyer.
I shouldn’t say ‘pretending to be a lawyer’. Lawyers write like this for crying out loud!
But this is, in inverted commas: “I’m writing legal.” It’s not necessary and it makes people stop and go ‘What? Wait!’ and they have to read it again. You’re doing a massive disservice to your client, you’re doing a massive disservice to their customer who’s trying to agree a contract with them, because they’re both either not going to read it at all because they just can’t be bothered with it, or they spend a lot of time on it because it’s confusing and it’s badly written.
And then even worse, they finally come to the conclusion: “Sigh, that’s not even necessary at all. That’s a total waste of my time.” If they’re lucky, they get to that point, but now they’re annoyed and they’ve lost five minutes trying to figure out why they’re reading this.
DR: And I guess as the saying goes, in business time is money, right? So the time you spend having to read the contract, if you’re a non-legal minded person, and try to interpret it. And then obviously you have a contract – that means there’s two entities involved – so I have to get the supplier or customer or client working with me to understand it and if they have questions about it. That’s a lot of time spent going back and forth. So, the plain English treatment again, if I understood correctly, those two examples probably wouldn’t even make it into one of your contracts.
TF: Right, I would just leave them out.
DR: So that way I’m not confused by those two statements, because they’re just not there, right?
TF: Correct.
So now I’ve got another example here. These are clauses that need to be in the contract, but it’s the style of writing that’s the problem that can be can be tightened up.
This is early on in a contract. It is essentially the introductory paragraphs that they are giving you some context for why the contract has been written. So here’s what the original version said, and this is real, I didn’t make this up. I copied and pasted this and then I’ll give you my redraft of it. It starts off by saying this:
“Company A and Company B are desirous of entering into discussions regarding the project.”
OK, I’m going to stop there. That’s only part of the part of the clause.
DR: Wait, did you say desire-ous?
TF: Yes, “-ous”. Desirous.
DR: I think I know what it means in context, but that’s a really weird word.
TF: Tell me about it. So, these two companies are “desirous” of entering into discussions. Here’s my redraft:
“Company A and Company B intend to discuss.”
Who cares about desires?! (laughing) So right there we’ve shortened it, we’ve put it in an active voice in the present tense, and you don’t have to read it a second time. It’s pretty clear what they’re doing: these two companies intend to discuss the project.
The next sentence in the legalese version says:
“During and as a consequence of discussions concerning the project, it will become necessary for each party to disclose to the other certain confidential and/or proprietary technical and/or business information which each party is agreeable but not compelled to disclose to the other party subject to the undertakings given by the other party in this agreement.”
DR: I’m not even going to try and interpret that. If you could just please provide me with the plain English version, that’d be great.
TF: For the plain English version, I broke it into two sentences and it just says:
“During these discussions, each party is likely to disclose proprietary information to the other party. This agreement governs the use and protection of any proprietary information exchanged between the parties.”
DR: That makes a lot more sense.
TF: It’s still not, you know, pub talk, right? This isn’t banter but it’s still a business document. It’s direct, in an active voice and present tense, none of this “and/or” nonsense. The original legalese version was 70 words long and my redraft is 40 words long and they cover the exact same territory.
DR: And is that where one of your straplines comes from? “We do business 1st and legal second.” Because it sounds to me when you’re re-drafting those examples, you’re writing them for a non-lawyer to read and not have to spend tonnes of time reading / interpreting. Is that fair to say?
TF: Yes, and the thing is with any commercial agreement, it’s ‘commercial’ first. We don’t say “legal commerce”, it’s “commercial law”. The commerce comes first for a reason. Because any agreement that you write, any agreement you make with any other company or with it with a customer, whoever is, is simply it’s a commercial agreement between the two of you where you’re basically saying: “I’m going to do this you. You’re going to do that. Here’s what the price is. This is the schedule we will follow. And if one of us doesn’t do what we promised to do in this document, here’s how we’re going to handle it.” That’s pretty much what every commercial contract says.
There is no contract to write unless you first have a commercial agreement, in other words, business people shaking hands and saying: “Yes, this is what we’re going to do together.” And then all the contract does is describe that commercial arrangement.
And yes, there are legal effects to that commercial arrangement, but the legal bit serves the commercial bit. There’s no point in writing a contract unless it is to facilitate a commercial deal. That’s what a commercial contract does. The contract and the legal bit of it – that’s not the object. The object is whatever transaction you’re doing, whatever relationship you’re setting up. It could be you’re going into business with a business partner, so you’re going to want to have a contract that describes how you run the business together, how you distribute the profits, etc. With that agreement, there’s nothing to write until the two of you have sat down at the table and said: “Here’s how we want to work together, here’s how we’ll manage the company, and here’s what we’ll do with the money.”
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Part 1 transcript end
Episode Title: The Plain English Difference: Part 2 of 2
Podcast Description:
Contract templates might seem like an easy quick-fix but the complicated legalese they are written in isn’t just irritating, it can actually harm your business.
Difficult to understand language means ambiguous terms of business. This creates headaches for customers, puts strain on business relationships, and can end up trashing your reputation.
In this two-part episode, Trevor Fenton uses examples to explain how taking the time to write commercial contracts in plain English is better for your business, your brand, and your bottom line in the long-run.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 16 Aug 2021
Recording Length: 00:17:31
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. This is the second part of a two-part episode called ‘The Plain English Difference’. (You can find Part 1 on the Plain English Law website at https://plainenglish2026.temp-dns.com/podcasts/.) In Part 2 we break down what a ‘contract’ actually is – a business deal written down. I make the case for a ‘business first, legal second’ approach to contract writing, and share more examples of how to transform contracts from legalese to plain English. Let’s rejoin the conversation now…
DR: Yeah, that makes sense. Do you mind if I ask you a very obvious question? A layman’s question?
TF: Not at all.
DR: In terms of commercial law and types of documents drafted, are there a set list of documents that you would expect from a commercial lawyer to be able to do or provide? Or is it similar to other professional services where actually it’s such a vast space that no one practitioner or even firm could deliver every single kind of agreement?
TF: It is fairly vast, and yet there are – that sort of formula I just gave you of what a commercial contract looks like – it is literally just a commercial deal written down on paper. It’s just a matter of how much detail you want to go into. The more complex the deal is, the longer the contracts can be. The more eventualities you want to deal with, the more risks you want to deal with, the more ‘what ifs’ you want to deal with, the longer the contract gets.
A lot of these risks and ‘what ifs’ don’t necessarily need to be dealt with in the contract, you know. The law often provides some sort of default positions, some default solutions to problems. It’s just that sometimes people don’t like those default solutions that the law provides, and so that’s why they’ll want to either make it clearer or have a different solution to those ‘what ifs’ in the contract. And they’re free to do that, it’s just that the more of that you do, the more of those things you cover off, the longer the contract gets, the more expensive it gets to draft because it takes longer.
There are specialisms certainly within commercial law, no question – within contract law, I should say. I do commercial law which is sort of fairly general field of: I’m going to sell you this product or service, and so let’s write down what the terms of that sale are going to be. Or I’m going to rent you some equipment, or I’m going to let you use my ballroom for your wedding, that kind of thing. Those are sorts of general business contracts.
There are more specialised types of contracts, like construction, for example is a very good example of a contract that I generally would not handle. I certainly wouldn’t draft one from scratch because there are all sorts of laws that apply specifically to construction and to repair work done on buildings and I just don’t have that expertise. There are all sorts of solicitors out there that focus on construction law. So what I would do is I would recognise this is a construction issue, I have some understanding of the law around it, but not enough to be to be competent to draft this contract and give advice on it. So I’m going to refer this to a colleague that I know who is good with this stuff.
DR: OK, that makes sense.
Again, another layman question from me. A lot of business owners will try and save money by using template contracts. What are the pitfalls of using template contracts?
TF: Well, one of the pitfalls is you end up with contracts that your customers hate reading, and they wonder: “What are you trying to pull? What are you trying to hide? Where’s the trick in here because I can’t understand this.”
The other problem is there aren’t a lot of contract templates out there that are necessarily ready to go for your business, you know. You need to be asking yourself: What is my proposition to my customer, or what is it that I’m trying to get from my supplier, or I’ve got a contractor who is developing intellectual property for me.
For example, there may be a software developer who’s building an app for me and I want to make sure that we know who owns what at the end of this. Now you can probably find a software development template contract out there, and yet there are very few relationships and business transactions that you will do that will absolutely fit one of those templates. And it’s a little bit impossible to tell without discussing with the client how they want that relationship to work.
It’s impossible to tell whether one of these generic templates will work for them without some modification. And if you’re doing it yourself you absolutely can take one of these templates, read it through and ask yourself if that’s how you want things to work.
One of the downsides is that many businesspeople just haven’t seen that many contracts put together. They haven’t seen that many different disputes that have come up, and so a lot of the thinking that goes into what should be in this contract does come back to: “What could go wrong here? And what could realistically go wrong here? And what are the realistic consequences if something goes wrong between me and my customer after we sign this contract? And what do I want the result to be if that thing goes wrong?”
A lot of those discussions will be specific to your business and to your customer, to the customer relationships that you want to have, to the customer experience that you’re trying to set up. And so no – no generic contract template will be able to capture that. You will have to modify it.
The final thing I’ll say is what about your brand voice? So when I mentioned the customer experience, if you’re talking to a customer about and selling – you know, selling them on your product, your service, your brand, whatever it is you think about that journey that the customer takes as you bring them along towards deciding ‘yes, I want to buy from you.’ – they are having an experience and you’re you are building your brand. You want that brand experience to be consistent.
What happens if, after all of this lovely experience they fall in love with your products, etc., and they’re ready to buy. And then you stick this ghastly document in front of them that’s written in this awful prose that, compared to the tone of the conversations leading up to this, is suddenly changed. It’s a jarring experience.
Now sometimes your customer will just draw some breath and say: “Alright, of course, this is just the fine print. I trust this person. I trust this company. I’ll just go ahead and sign.” But if they don’t, how often are you going to know that was what it was all about? If they suddenly go silent? How often are you going to know what really happened? How often do you get to know whether it was actually the fine print that that made them go: “Oh, geez, I don’t want to do business with people who do business like this.”
Because remember that contract you’re handing them – that is your business literally saying this is how we are going to do business with you.
And if it’s written like that, if it’s written in unfair terms, with unnecessary and unfair rules, in an impenetrable language, you’re sending a message to your customer that this is how I want to do business with you. It’s not a good look.
DR: Ok. So I’m going to try and summarise and ‘laymanise’ what you said, although to be honest it’s all pretty clear. Essentially, there’s a misconception that legalese has to be put in legal documents to make it legally binding. That’s not true, correct?
TF: Not true at all.
DR: And the purpose of a commercial contract. And I think this is how you explained it and you can correct me if I’m wrong: It’s like an agreement between two parties for something they’ve already agreed in principle, and the idea is that they should be able to use that document as a reference and go back to should a dispute or disagreement arise. But that document should be so clear that if a dispute does arise, it explains who’s right and wrong? Have I got that right? What should happen in the case of a dispute? Is that correct?
TF: Well it can do. I mean that’s extra detail that you can add to a contract. Or you can simply rely on the legal default, right? We have a court system. We have systems for dealing with disputes. But frankly, they’re very expensive to use, and if we’re perfectly honest, you probably won’t end up in court with your contract.
What your contract really needs to do more than anything is help you and your customer defuse or resolve the dispute yourselves. Because that’s the only efficient way of doing it.
DR: Yeah, like you said: “You do this, I do that, this is what happens if it’s not done, or this is what we agreed to do and this is within scope this is not within scope.” And then if you have that agreement, it’s very clear what should and shouldn’t be delivered, right?
TF: If it’s a clear agreement, because, as I said, all that the contract is, is the conversation that you had, it’s the agreement that you guys made up, you know, sitting around the table in the boardroom or negotiated at the pub. Wherever you negotiated this deal you came to, you said: “Yes, this is how we’re going to work together. Now let’s just write that down so that we’ve got a record of it.” All that a written contract is, is evidence of what you agreed. It’s going to be either good evidence and helpful evidence, or it’s not going to be helpful evidence based on how it’s been written.
So imagine if you are three years later, after you signed this contract, let’s say we’re talking about a shareholder agreement. So you have started a company with one of your friends or maybe one of your family members, whoever it is, but you’ve started a company together and you’ve started doing business together and you thought: “Let’s sign a shareholder agreement first so we’ve got this down on paper about how we’re going to manage this thing together.” Three years later, your business partner does something you don’t like and you think: “Hey, that’s not what we agreed.” So you go to your proverbial desk drawer and pull out the agreement and start reading it.
Now, if this agreement has been written in terms that you don’t really understand or that has long, confusing sentences or some ambiguous wording, then it’s possible for you to read a sentence and come to a very different conclusion than your business partner about what that exact same sentence means. And each one of you, if you’re in a dispute and you want a different outcome from each other, it’s very likely that when you read that sentence, you’re going to interpret it to mean what you want it to mean, and the other person is going to interpret it to mean what they want it to mean.
A plain English, well-drafted contract will never be perfect. I routinely look at contracts that I’ve written in the past and think: “I think I’ve come up with a better way of doing that. I would write that differently today.” So contracts are, even a contract I consider to be really good from a plain English standpoint, can still have some things that I hadn’t thought about when you first drafted it. So that happens.
But you know what? What writing it in plain English does is, it makes it less likely, far less likely, that two people can read the same sentence and come to totally different interpretations of what it means. A more likely reaction is: “I don’t like what you did.” so I pull out the contract, I read it and I go: “Oh, I forgot that we’d agreed you could do that. I guess there’s no problem here.” or “Maybe we need to have a conversation because I’d forgotten I’d agreed that and it doesn’t work for me anymore and I’d like to have a discussion. I’d like to see if we can update this.”
That’s a very different attitude and a very different approach from: “Look what that person did. They can’t do that because the contract says X and I’m going to tell them they can’t do that and maybe threaten to sue.” That’s very different from: “Let’s talk about this because this doesn’t work anymore.”
DR: It’s a more productive way of doing business, right? There’s less aggression, it’s complementary.
TF: And it just makes it less likely for conflict to spiral out of control, because that can happen, especially when emotions get into a business discussion, which happens lots. You know, something that started off with: “I don’t like the way this is working” becomes: “I can’t trust you” becomes: “You’ve done this to me on purpose.” People start digging their heels in – a poorly drafted contract can actually create a conflict that was quite avoidable. And most of the time when I see a contract that does that, it’s because it’s got some significant ambiguity in the way it’s been drafted.
DR: Thank you for explaining. Do you have any key point summaries or takeaways you want to wrap up with?
TF: I think plain language builds trust. When you write things in plain language, people aren’t left wondering what little trick you’re trying to play. They’re not looking for the ‘hook’, if you will.
When you get a dense legalese document that’s drafted by someone else’s lawyer – I know from personal experience – that’s the first thing I wonder. I start looking through and wondering: “What am I missing here? What little things are going to come back and bite me later?” The plainer it’s written, the less likely it is that the document will provoke that reaction.
Also it means, let’s say it’s a customer contract, maybe it’s terms of business on your website. Whatever it is, it’s some kind of customer contract. The plainer it’s written, the less likely your customer is going to have to call in and ask your call centre staff, ask your sales managers, ask any of your staff what this means.
And I’ve seen it. I’ve seen it in businesses I’ve helped before where they’ve – I don’t have measurements for it – but I’ve been told by a couple of former clients and employers that when we updated the contracts to be written in plain, much plainer, much briefer language, there was a noticeable reduction in the number of customer enquiries about what the contract meant. And that means you need fewer call centre staff.
It also means there’s less, there’s just a lot less potential for mistrust. People know that, essentially, it does what it says on the tin, and can rely on it. They can rely on their own reading of the contract without thinking that they might be missing something, and so that’s good for the customer experience. And, ultimately, it’s good for sales and reduces costs.
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Transcript of Part 2 end