Plain language is plain necessary May 2016

By GAIL SCHIMMEL, Published in Consumer Law

A few years ago, with the introduction of the Consumer Protection Act (68 of 2008) (CPA) everyone was worked up about plain language, and plain language practitioners saw a surge of work. But then the Act became enforceable, and nothing happened, and slowly the compulsion to have contracts and consumer facing communications in plain language petered out.

What has happened is that marketers and corporations have mistaken the need for plain language as simply being motivated by the legislative imperative of the CPA. But the motivation for plain language is much more complex than this, and should be at the forefront of every business's strategy.

For financial institutions, such as banks and insurance companies, the need for plain language is given wings because of the Financial Services Board's requirements around Treating Customers Fairly (TCF). The TCF guidelines say that the following six outcomes should be met:

  • Customers can be confident they are dealing with firms where TCF is central to the corporate culture;
  • Products & services marketed and sold in the retail market are designed to meet the needs of identified customer groups and are targeted accordingly;
  • Customers are provided with clear information and kept appropriately informed before, during and after point of sale;
  • Where advice is given, it is suitable and takes account of customer circumstances;
  • Products perform as firms have led customers to expect, and service is of an acceptable standard and as they have been led to expect;
  • Customers do not face unreasonable post-sale barriers imposed by firms to change product, switch providers, submit a claim or make a complaint.

I have emphasised three of the points, all of which I feel are met to some degree by an approach of putting all contracts, policies and consumer facing communication in plain language.

But it is not only the customer who is served by plain language but the entity itself. This is for two reasons: certainty about delivery and certainty in litigation.

I have seen a number of examples, over the years, where when the contract or policy is reduced to plain language, the company discovers that not only are they not actually sure what they are saying about a particular situation, they are also not sure what they actually do in that situation. This type of almost farcical situation is not possible with a good plain language document.

Flowing from this is that once the company knows what it is promising, and the customer knows what they are expecting, the need to resort to litigation drops. And in the event that the matter proceeds to litigation, the courts are unlikely to interfere with the plain meaning of the words.

But you will note that I referred to a “good" plain language document. Companies often decide that the costs of plain language practitioners are unnecessary and attempt to do the job in-house. Someone with a good grasp of English is given the document, and they try to make it “nicer" to read. This is not plain language. Plain language is a set of specific steps, involves a specific structure, and most importantly includes certain specific language changes. A half-done plain language job is probably more dangerous to a business than the original “un-plain" document.

For now, the threat of the CPA may have shrunk but businesses that ignore the drive towards plain language do so at a risk.

Schimmel specialises in Advertising Law.