Disclaimers are everywhere. From the websites we visit to the products we buy and the ads we watch, the terms under which consumers read and receive are carefully wrapped in legal bubble-wrap to protect brands from liability. In an age of transparency, such disclosures seem prudent and very much in keeping with the demands of today. You know where you stand. The terms for what you are getting are laid out in explicit detail. Or are they?
At a time when so many consumers admit to having disclaimer fatigue and not checking the fine print, do disclaimers work to build trust? How much do customers really need to know to feel they are dealing with a brand that is being honest with them, and do disclaimers fulfil that purpose?
What do you think you’re agreeing to?
Almost no-one I know reads the fine print unless they’re legally trained. There are two simple reasons for that: the disclaimers are too long, and the language is difficult to say the least. But while most people are happy to just click “Agree” and have done, Marty Nemko’s account of what’s really in the fine print could well leave you questioning whether disclaimers are at odds with the principles of being open and honest. Read the disclaimer for the drug Chantix that he quotes. The statements might be accurate but the way they are presented is not intended to communicate, not really. (And if you’re keen to see what some of the other fine print disclaimers are that you might have missed, take a look here.)
So how much do people need to see and know in order to trust a brand? This research would suggest it depends. If you’re already a trusted brand, then many of the disclaimers that you tack onto the end of your mainstream advertising will be seen as a compliance requirement. However, for brands that don’t have the trust of their customers, the very same actions can undermine trust. We see disclaimers we receive from the brands we know as required but little more. We question whether the disclaimers we see from other brands are evidence of evasion.
The tension that’s often cited, particularly in mainstream media, is between the time and space allocation for the message (which requires simplicity, singularity of message and brevity) and the complexities and implications of the product itself. New Zealand and the United States are unique in the world, for example, in being the only countries to my knowledge where companies can market pharmaceuticals directly to the public. While proponents for a free market will encourage such environments, the fact remains that it is almost impossible to present a fair view of a clinical brand’s benefits and risks in such a limited window. I’m not saying the environment is wrong – only that it generates situations that put the right to market and the right to know in potential conflict.
The words are less important than the intention
I think disclaimers are all about the spirit in which they are given. There are some disclaimers that are simply there because of broadcast requirements and that clarify what is going on – the “Filmed on foreign roads” type of disclaimer. As you will have seen if you’ve looked at the examples cited above, most of these are obvious and some border on the infantile. But the type of disclaimer that works against a brand is the one that looks to underplay the potential downsides or to provide the brand with a get-out-of-jail card. Disclaimers such as the infamous “Results may vary” fight with the spirit of what is being said because they discredit the very trust and honesty that the brand is looking to elicit through its communication. They may be legally right, necessary even, but they are ethically questionable in their intention. They often allow a brand that markets on results to retain no responsibility for results.
My view is that if you have to hide, rush or obfuscate what you do then your brand is not being honest about its product. And treating consumers as people to be tricked is a very old-fashioned view of marketing indeed. It’s not something that brands should be aiming to achieve at a time when transparency has never been more important. Disclaimers in my view should be an opportunity to tell a balanced story not one that seeks to cloud the issues in length and complexity. The implications of this reach far beyond disclaimers of course. Labels, policies and waivers are examples of where brands need to stop defaulting to opaque. And they point to a wider problem that marketers and communicators continue to grapple with: the difference between communication and information.
Communication is about working with a person in a way that they are receptive to and that is inclusive. Information, often, is entirely the opposite. It lays out the facts and leaves the reader to sift and sort for themselves. Insurance companies, professional firms, pharmaceutical companies, banks, government departments, the ICT industry and many others love to inform. They present what they have to say in a plethora of jargon and links and think their job is done. They then put the onus on customers to invest the time and effort required to work through what has been provided.
Information is a cop-out. It’s the action of a smug brand with a belittling view of its customers.
Just so we’re clear, I’m not for one minute suggesting that marketers should avoid listening to their legal departments. Quite the opposite. Brand owners and legal counsel need to work together a lot more closely to convey necessary information in a way that fits with the brand and that really communicates. In fact, disclosure should be treated as branded communications not as compliance or risk management documents, and doing so would fundamentally shift the approach that organisations took to laying out what consumers receive and what they need to be aware of.
Recently I drew this distinction between transparency and authenticity: “We quite rightly think of both transparency and authenticity as being about truth. The difference is that transparency is about being true to others in what you disclose while authentic is about being true to yourself in how you act.” Policies, labels, waivers and disclaimers should also be about the truth. They should be about staying true to your actions and your intentions. If you have to hide your brand and what it does behind a bunch of legal double-talk, then that isn’t smart or intelligent. It’s something you should be questioning. Hard.