Community research oninformed consentQualitative research reportMARCH 2011
ContentsExecutive summary 1Background 8Overview 8The need for research 8Research objectives 10Objectives 10Scope 10Research methodology 11Overview and rationale for the methodology 11Timing of fieldwork 11Sample 11Recruitment of respondents 13Pre-group homework task 13Discussion guide and use of scenarios 13Detailed findings 15Consumers’ expectations of informed consent 15Concerns with providing informed consent for different productsand services 22Preferences for informed consent in different situations 34Consumer attitudes towards inferred consent and the length of timeof consent 37Consumer attitudes towards consent involving minors 40Conclusions 43Appendix A: Screener 47Appendix B: Scenarios 50Appendix C: Discussion guide 55
Executive summaryResearch backgroundThis report presents the findings of qualitative research into community attitudes,perceptions and understandings of rights and responsibilities in relation to informedconsent across a range of communication platforms. The research focused specificallyon issues with consent and privacy relating to digital communications within atransactional context. The research was conducted by GfK bluemoon for theAustralian Communications and Media Authority (the ACMA).Recently, another qualitative research study was conducted by GfK bluemoon toinform the ACMA of community perspectives about informed consent and privacyissues that arise in broadcast news and current affairs programs, radio competitionsand the digital media context. For further information, please refer to this report titledCommunity research into broadcasting and media privacy published on the ACMAwebsite.Informed consent, as a legal concept has various meanings, depending on thelegislation and circumstances in which the term is used. While the research took intoaccount the way that informed consent is defined in communications legislation andregulation, it was not intended to examine consumers understanding of the legalconcept. Rather, the research specifically aimed to explore the consumer experienceof providing informed consent in various situations and to understand communityattitudes towards consent issues more generally.This research will assist the ACMA when assessing issues that arise in thecommunications sector around obtaining consent for contract formation, subscriptionsservices and use of personal information. The research findings are also intended toprovide the ACMA with a rich understanding of community perspectives whenproviding advice to industry, government and other stakeholders on related subjects.Research objectivesThe main objective of the research was to inform the ACMA of communityperspectives and understanding of rights and responsibilities in relation to informedconsent across a range of communication platforms. In doing so, the researchexplored attitudes towards: what ‘informed consent’ means perceptions of the opt-in process (opt-in/opt-out) across various technologies and services the decision-making process that is associated with providing informed consent and inferred consent, including the length of time for which consent is valid across a range of situations issues associated with giving consent and privacy issues, sharing information within organisations and with third parties providing consent on other people’s behalf e.g. parents for children common concerns consumers have across a range of products and services relating to informed consent
what consumers considered to be appropriate and inappropriate ways to handle consent in a range of situations.Research methodologyTo explore in-depth community attitudes to providing informed consent, qualitativeresearch was conducted using 14 discussion groups with adults aged 18 years andover. Each group comprised six to eight participants from metropolitan and regionalareas in New South Wales, Victoria and South Australia.Nine scenarios describing realistic situations involving giving consent were used tostimulate discussion.Key findingsConsumers are providing informed consent on a regular basisConsumers in our sample associated informed consent with agreements madebetween themselves and another entity or organisation. They were providing informedconsent on a regular basis, with some claiming this was happening daily, whereas forothers this was occurring on a monthly basis. Typical situations that consumersidentified providing informed consent for included: a financial agreement with a company in return for goods and services providing personal information in return for a service or potential gain, such as for surveys or competitions providing permission for others to make decisions or use their skills on their behalf, such as medical providers.‘Understanding’ and ‘comprehension’ of the agreement are essential to ensure‘informed’ consent can be givenA number of factors relate to ‘understanding’ and whether a consumer feels they cangive informed consent, including: understanding the terms and conditions accessible language being used information delivered in an accessible format and layout a non pressured environment feeling comfortable and able to ask questions if they do not fully comprehend.In addition, participants believed that informed consent relies upon both the companyand the consumer having a thorough understanding of the situation. Thus, theybelieved that a company has a responsibility to provide the full information to theconsumer. In turn, a company has a right to expect that, in order to feel informed,consumers have understood the information should they agree. Consumers alsorecognise they have a responsibility to understand the information to which they areagreeing.Providing ‘consent’ versus ‘informed consent’Consumers perceived there to be a clear difference between providing ‘consent’ and‘informed consent’. They identified that they often gave ‘consent’ but claimed that inreality it was not always ‘informed consent’, as they defined it. This is because theyoften provided consent without a full understanding and comprehension of the termsand conditions of the agreement.
Perceptions of ‘risk’ affect people’s attitudes and behaviour as to whether theywant to feel fully informedConsumers readily admitted that they often chose not to read or listen to the termsand conditions, and, therefore, be fully informed. Many respondents providedexamples of instances when they: scrolled to the end of the webpage without reading terms and conditions clicked the box without reading the offered information became distracted or bored and chose not to read blocks of text or listen to a salesperson.In these instances, consumers felt comfortable that they had not informed themselvesof the terms and conditions because they perceived few, if any, negativeconsequences relating to financial or personal details being compromised.Yet in situations that appear more ‘risky, consumers endeavour to fully understandand comprehend the terms and conditions to ensure they are ‘informed’. Thesesituations included: when substantial finances are involved, particularly ongoing contracts with a set period of time where they want to know the ongoing and maximum costs when detailed personal information is required and there may be a risk of personal privacy being compromised when the brand or company are seen to be more ‘risky’ and there may be more to lose if they are unscrupulous.Consumers recognise that companies often make it difficult for them to provideinformed consentConsumers recognised that it was not always easy to give informed consent. In someinstances, they believed that companies purposely make it difficult for consumers tocomprehend the terms and conditions. Many reported instances where they did notprovide informed consent, because: the language used made the terms and conditions inaccessible, with the use of legalese or technical, unfamiliar phrases there was too much information in the terms and conditions to comprehend at once, particularly when provided over the phone the environment meant they felt pressured or rushed.Consumers have a real issue when they feel the option of choosing whetherthey want to provide ‘informed consent’ is taken away from themGenerally, consumers accept they have a significant role to play in ensuring theirconsent is informed. They recognise they have a responsibility to understand theterms and conditions of the agreements they are consenting to. They believe theyshould have a right to make the choice to access and read the terms and conditionsbefore providing consent or not.The real concern arises when consumers feel they do not have a choice as to whetherthey can provide ‘consent’ or ‘informed consent’. Thus, it is when information is notprovided by the organisation, or not provided in an accessible format, that consumersbelieved consent can never be informed. Consumers can feel disempowered in thesesituations as they feel the power lies in the hands of the organisation with which theyare dealing.
ConclusionsConsumers identified a ‘core principle’ of informed consentFrom a consumer’s perspective, the ‘core principle’ of informed consent is that fullinformation must be offered in an accessible manner, at the time of agreement. Usingthis as the ‘core principle’ and based on their experience, consumers identifiedappropriate and inappropriate ways to handle consent in a number of situations. Usingscenarios in the group discussions enabled specific situations to be explored.Contracts with telecommunication providersAlthough some consumers had experienced a positive consent process involving atelecommunication contract, more people explained that they felt the process hadbeen inappropriate and they had not been able to provide informed consent. Overall,expectations in regards to providing informed consent for telecommunicationscontracts were very low. People felt they had no power in the consent arrangement,and that they often felt rushed or pressured through the consent process. Given theserelatively negative views, consumers believed that telecommunication companiescould improve certain aspects of the consent process.In order for consumers to feel fully informed, they believed that ideally atelecommunications provider should offer to send a hard copy of the contract and theterms and conditions for reference.With regard to provider-initiated changes to terms and conditions of a contract,participants felt that when acceptance is inferred through them continuing with theservice, adequate time must be given to allow the consumer to inform themselves ofthe change and have an opportunity to opt-out. Therefore, most people felt that aminimal cooling-off period, such as 14 days, should be allowed between makingconsumers aware of the change and the change taking effect.Provision of personal informationThere was high awareness that personal information is sold and passed on to affiliatesand third parties, and as a result, many participants claim to be careful about whichinformation they supply. Notably, participants felt more comfortable consenting whentheir personal details are handed to ‘affiliates’, as opposed to ‘third parties’.As a general rule, consumers expect their consent to be sought about receivingmarketing information and the expectation is that information will not be passed to‘affiliates’ or ‘third parties’ unless explicitly stated at the time of the agreement. Therewas also a consensus that companies who run competitions should, ideally, only holdpersonal details for the life of that competition.It is important to note that familiarity with the brand—i.e. a known brand—can impactupon the way people feel about giving informed consent. Findings showed thatconsumers can potentially overlook the consent process for those companies theysupposedly ‘trust’. Conversely, if they do not recognise the company, they are morelikely to be wary and may make the effort to read the terms and conditions, beforeproviding consent.Consenting onlineConsumers recognised that often companies make it easy for consumers to overlookthe consent process by displaying: large blocks of text on screen terms and conditions in a small font acceptance boxes already ticked, resulting in the need for the consumer to opt-out.
Participants had a definite preference for an ‘opt-in’ situation, as opposed to ‘opt-out’as this avoids the potential for ‘missing’ the box and, therefore, accidently providingconsent. It implies a definitive action by the consumer.They disliked the fact that in some circumstances consumers must tick the box to‘NOT’ receive marketing material or have to ‘un-tick’ an already ticked box to ensurematerial is not sent to them.They also recognised that the online medium encourages people to act quickly,thereby not taking time to read information.Ideally, when consenting online: the terms and conditions should be formatted to be easily legible there should be a requirement that the acceptance box is to be ticked before moving onto the next page, as this prompts the consumer to choose whether or not to read terms and conditions there should be an opt-in mechanism, as opposed to an opt-out means, as this ensures the consumer makes an active choice to tick the box or not.Consenting over the phoneParticipants expressed a number of concerns about providing informed consent overthe phone, most of which are associated with the ‘core principle’. As a result, theybelieve that ideally any contract that is consented to over the phone would entail anoffer of an agreement in hardcopy, and a cooling-off period would apply.With regard to the Do Not Call Register, the majority of participants felt that if it isobvious a consumer has provided informed consent to a business for them to use theirpersonal details; this should override the fact that they are on the Do Not CallRegister—which reflects the correct interpretation of the Do Not Call legislation.Consenting face-to-faceParticipants identified that ideally when consenting face-to-face, companies shouldfollow the ‘core principle’. Thus: salespeople should explain the terms and the conditions of a contract clearly any ‘legalese’ and unfamiliar terms should be explained consumers should be given time to read the information/contract consumers should be encouraged to ask questions to clarify anything they do not understand.Length of time consent is valid and attitudes towards inferred consentParticipants had not given the length of time for which consent is valid muchconsideration. Despite there being high awareness of consenting to personal detailsbeing collected for marketing purposes, most had never considered how longcompanies keep personal details on file.When participants were asked what they thought ‘inferred consent’ was, most peoplecould not articulate their thoughts very clearly. It was not a term they had come acrossvery often.When prompted, participants felt that consent should be valid or ‘inferred’ for theintended length of the relationship as long as it is congruent to the purpose of therelationship. For example, for any contract, they believed the provider has a right touse and keep personal information for the length of the contract. Once that contracthas expired, they believed that businesses should no longer hold that personalinformation on file.
With regard to competition entries, inferred consent for businesses to use personalinformation is only regarded to be acceptable for the length of time of the competition.The vast majority of consumers felt it was reasonable for health providers to assumethe customer has provided inferred consent for them to make contact.The length of time consent is valid and whether it can still be inferred was alsodiscussed in the research GfK bluemoon conducted into broadcasting and mediaprivacy. This revealed that some group participants—the ‘Consenters group’—held aview that broadcasters should ‘re-obtain’ consent to use personal information whensourcing this information from public records. For further information, please refer tothe report titled Community research into broadcasting and media privacy publishedon the ACMA website.Consent involving minorsParents in the ‘older family’ groups were asked specifically about consent involvingminors across a number of situations. Participants felt that any agreement for anongoing financial obligation involving a person under the age of 18 should require thebill payer’s express consent. They agreed with the current legal situation that under18-year-olds should not be allowed to sign a telecommunications contract.Despite parental concerns about minors disclosing personal information in onlineactivities such as social networking sites or signing up for email alerts, seekingparental consent in these circumstances was thought to be impossible to implement. Itis largely understood that this is a difficult area to police or regulate, and parents feltthey should be taking responsibility to understand their own children’s activities if theychoose to.For findings about community views about the broadcasting of personal materialsourced from online social media sites involving both adults and minors, please referto the report Community research into broadcasting and media privacy. The majorityof respondents felt that if broadcasters used information from people’s own page froma social network site where no privacy controls had been set, then this wasacceptable, as they have given implied consent for anyone to use this material.However, if they had set privacy controls, the community did not believe thebroadcasters had a right to use this information.Ways in which consumers consider an organisation can provide a positivecustomer experienceIn addition to the principles outlined above, consumers believed that if an organisationwishes to provide a positive customer experience, they should ensure the following: descriptions in layman’s terms so the language is accessible for consumers opt-ins (not opt-outs) to promote the sense of choice for the consumer, and protection from providing consent ‘accidentally’ the offer of a hard copy agreement for any ongoing contract—regardless of how the initial agreement is made (phone, online, face-to-face) a cooling-off period be applied to any ongoing contractual agreement the length of time of consent for personal details to be held should be linked to the purpose of the relationship unless expressly stated otherwise.Considerations for consumers if they wish to provide informed consentConsumers must recognise that it is also their responsibility as to whether they chooseto be fully informed when giving consent, as long as an organisation has provided therelevant information. If a consumer wishes to provide informed consent, they shouldensure the following:
taking time to read through the terms and conditions of a contract, whether it isonline or face-to-faceif a cooling period is offered, use this to check the terms and conditions of acontractensuring they notice whether opt-in or opt-out boxes are ticked/un-tickedrecognise the issues with consenting over the phone and consider whether it is anappropriate consent channelrecognise the possibility of signing up to the Do Not Call Register to opt-out ofreceiving certain telemarketing callsbeing aware of the possibility of companies using consumers’ personal informationand potentially passing it on to third parties and recognising their responsibility forwhat they share with othersrecognise that friends or family may be passing on personal information tocompanies when entering competitions and ensure friends or family realise thepossible consequencesas a parent, recognise that it is their responsibility for consenting totelecommunication contracts for childrenas a parent, recognise that it is their responsibility as to whether they educate theirchildren about cybersafety and the possible consequences and potential risks ofspam.
BackgroundOverviewThe Australian Communications and Media Authority (the ACMA) aims to betterunderstand issues that arise in the communications sector around obtaining ‘informedconsent’ from consumers in numerous situations including contract formation,subscription services and use of customer information. The ACMA works closely withrelevant industries to achieve active self-regulation, while ensuring industrycompliance with licence conditions, codes of practice and standards. The ACMAmonitors the effect of regulations to ensure they are responsive to the communitysneeds.Consent definitions and requirements are inconsistent, and a range of definitions canbe found throughout various telecommunication laws and industry codes of conduct,and other laws. The Privacy Act 1988 defines consent as meaning ‘express consent’ 1or ‘implied consent’. Similarly, the Spam Act 2003 and the Do Not Call Register Act2006 define ‘consent’ as ‘express consent’ or ‘consent that can be reasonable inferredfrom: the conduct and the business and other relationships of the individual or 2organisation concerned’.The consultants were briefed on the various definitions of ‘informed consent’ inlegislation and the regulatory environment. However, the research aimed to explorethe consumer experience of providing informed consent in various situations and tounderstand community attitudes towards consent issues more generally. The reportreflects this consumer perspective. Other factors that add to the issue of ‘informedconsent’ being confusing for both consumers and industry, include: the collection of consent from consumers through a diverse number of methods such as requiring a written signature on an application form, through to sending an SMS code differences in the amount of information provided to consumers before obtaining consent—from no information through to long documents the fact that the channels through which consumers provide consent vary from online, over the phone, via SMS or face-to-face.The need for researchWith the emergence of new technologies, the complexity of defining ‘informed consent’is likely to increase. Therefore, the ACMA commissioned research to understand thecommunity’s views and understanding of rights and responsibilities in relation toinformed consent across a variety of digital communications technologies andservices. This research focused specifically on issues with consent and privacyrelating to digital communications within a transactional context. Recently, anotherqualitative research study was conducted by GfK bluemoon to inform the ACMA ofcommunity perspectives about informed consent and privacy issues that arise inbroadcast news and current affairs programs, radio competitions and the digital mediacontext. For further information, please refer to the report titled Community researchinto broadcasting and media privacy published on the ACMA website.1 Privacy Act 1988 (Cth),www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401860.2 Spam Act 2003 (Cth), www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401898.Do Not Call Register Act 2006 (Cth),www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200615352.
The research findings are intended to provide the ACMA with a rich understandingwhen considering informed consent issues in the future and when providing advice toindustry and other stakeholders on consumer expectations.To date, there are very few publicly available consumer research studies that examineinformed consent from a user perspective. The only recent research in Australia thathas explored the issue of informed consent from a consumer’s perspective was a 3report by the Australian Communications Consumer Action Network (ACCAN). Thisinvolved a literature review of policy/best practice guidance in Australia andinternationally, as well as case studies and a brief survey of regulators and front-lineconsumer caseworkers. Its focus was on industry methods for obtaining informedconsent from specific vulnerable groups, such as young people and Indigenousconsumers, rather than the wider community. It found from their limited research that itwas not clear whether the wider population of consumers have experienced problemsrelating to informed consent and how they understand it works or should work. Thisqualitative research should help to fill that void.3 Australian Communications Consumer Action Network (ACCAN), Informed Consent Research Report, 21August 2009, www.accan.org.au/uploads/Informed%20Consent.pdf.
Research objectivesObjectivesThe overall aim of the research was to assist the ACMA in understanding communityattitudes, perceptions and understandings of rights and responsibilities in relation toinformed consent across a variety of digital communications technologies andservices.The specific objectives were to: explore consumers’ views on their expectations of what ‘informed consent’ means explore whether consumers have a clear understanding of their rights and responsibilities in relation to informed consent understand perceptions of the opt-in process (opt-in/opt-out) across various technologies and services explore the consumer decision-making process that is associated with providing informed consent and inferred consent, including the length of time for which consent is valid across a range of situations explore perceptions around associated issues with giving consent and privacy issues, involving sharing of information within organisations and third parties understand views about providing consent on other people’s behalf e.g. parents for children explore common concerns consumers have across a range of products and services relating to informed consent identify examples where consumers felt consent had been handled appropriately or inappropriatelyScopeFor the purpose of this research, participants’ use of digital communicationstechnologies and services includes the following activities: signing a contract in relation to purchasing a telecommunications service, for example internet, mobile, phone signing up for mobile premium services completing a survey and/or competition online or by post posting personal material online, for example, commentary, updates and photographs on social networking sites.
Research methodologyOverview and rationale for the methodologyGfK bluemoon conducted a program of qualitative research that consisted of 14discussion groups with adults in metro and regional areas across three states, eachcomprising six to eight respondents. Two initial groups were conducted to test thesuitability of the stimulus materials, with the 12 remainder groups being held twoweeks later. Each group discussion was approximately one hour and 45 minutes induration.Group discussions were chosen as the methodology for this project as these providean environment in which ideas and experiences can be exchanged, which is essentialin exploratory research. Respondents may have had difficulty articulating theirunderstanding of the rights and responsibilities relating to informed consent if asked inone-on-one interviews, but the comments of others in the group often help individualsto analyse and articulate their own behavioural patterns.Timing of fieldworkThe fieldwork was conducted between 6 and 23 September 2010.SampleTable 1 Sample Level of Grp Lifestage Age engagement with SEG Location State consent process 1 Pre-family/young family 22–35 Lower White St Leonards NSW 2 Older family/post-family 35–65 Higher White St Leonards NSW 3 Pre family 18–30 Lower Blue Orange NSW 4 Younger family 22–40 Higher Blue Orange NSW 5 Older family 35–60 Lower White Parramatta NSW Older (no kids)/post- 6 40–60 Lower Blue Parramatta NSW family 7 Pre-family 18–30 Higher White Adelaide SA 8 Younger family 22–40 Higher Blue Mt Gambier SA 9 Older family 35–60 Lower Blue Adelaide SA Older (no kids)/post- 10 45–65 Lower White Mt Gambier SA family 11 Pre-family 18–30 Higher Blue Melbourne Vic. 12 Older family 35–60 Higher White Melbourne Vic. 13 Younger family 22–40 Higher White Ballarat Vic. 14 Retired 55+ Lower Blue Ballarat Vic.
Rationale for sampleThe rationale for the variables used to segment the sample is described below.To promote positive group dynamics and ensure engagement with the topic, thesample only included those who had undertaken at least one activity involving givingconsent within the last three months. The four situations included:1. signing a contract in relation to purchasing a telecommunications service, e.g. internet/mobile/phone2. signing up for mobile premium services3. completing a survey and/or competition online or by post4. posting personal material online, for example, commentary, updates and photographs on social networking sites.Level of engagement with consent processThe sample was segmented according to their behaviour and level of engagementwith regard to the consent process in relation to the last time they signed up for atelecommunications service such as their mobile phone, landline or internet contract.Those participants in the ‘higher engagement’ groups were defined as those whoagreed with either of the following statements: I read the terms and conditions carefully and felt I knew exactly what I was signing up for before I signed the contract. I read some of the terms and conditions in detail, but skimmed over others and generally felt I knew the key details of what I was signing up for before I signed the contract.Those participants in the ‘lower engagement’ groups were defined as those whoagreed with either of the following statements: I briefly skimmed over some of the terms and conditions and I couldn’t tell you exactly what was in the contract but I think I had a fair idea of what I was signing up for before I signed. I didn’t really bother reading the terms and conditions before I signed the contract.The sample included an equal number of groups of those with higher and lower levelsof engagement with the consent process.GenderSelection quotas were set to ensure that each of the groups comprised anapproximately equal mix of men and women.AgeThe sample was segmented according to five different lifestages and ages, andincluded participants aged 18 to 70 years.Socio-economic backgroundThe sample included a mix of people classified as blue and white collar. ‘White collar’refers to people in professional occupations and ‘blue collar’ refers to those withoccupations that do not require specific tertiary qualifications, such as a trade.LocationGroups were conducted in three states in Australia: New South Wales, Victoria andSouth Australia. The metropolitan groups were held in Sydney, Adelaide andMelbourne and the regional groups were held in Orange, Mt Gambier and Ballarat.
Recruitment of respondentsRespondents were recruited by specialist recruitment companies that regularly partnerwith GfK bluemoon. A recruitment screening questionnaire structured around theattitudinal and demographic variables outlined in the sample was used for recruitment(Appendix A).Pre-group homework taskRespondents completed a pre-task prior to attending the group in which they wereasked to think of two examples where they felt the process for obtaining consent wasdealt with in a positive way that they felt was appropriate, and two examples where theprocess was felt to be inappropriate. They were asked to note what ‘providinginformed consent’ meant to them and to think of some different examples where thecollection of consent differed. This enabled respondents to start thinking about thetopic of providing informed consent which they may not have given much previousthought to.Discussion guide and use of scenariosA semi-structured discussion guide was developed and was approved by the ACMAprior to use.The discussion guide covered the following broad areas: understanding of informed consent information required before consent can be given examples of appropriate and inappropriate consent processes awareness of and attitudes towards spam and the Do Not Call Register (DNCR) reactions to different situations involving consent scenarios consent and minors (older family groups only) consent process for different situations (if not already covered).In order to understand attitudes towards different circumstances, a number ofscenarios were presented in the groups. These helped to stimulate discussion andhelp understand what participants considered the most pertinent issues in relation toproviding informed consent to be. Using specific scenarios also acted as a startingpoint to explore perceptions and stimulate debate about other broader situations. Fulldescriptions of the scenarios and the materials presented to participants are providedin Appendix B.The scenarios included:Scenarios A and B: Telecommunication provider notifying changes to the terms andconditions of a contract.Scenario C: Consideration as to whether providing informed consent to a businessshould override registration on the Do Not Call Register.Scenario D: Providing consent for a business holding personal information.Scenario E: Consideration as to whether inferred consent is appropriate in regard to amedical service holding personal details.Scenario F and G: Consenting to personal information being passed on to affiliatesand third parties when entering a survey.Scenario H and I: Consenting to waiving Customer Service Guarantee rights of atelecommunications contract.
This broad range of scenarios was chosen as they helped to gauge perceptions aboutparticular situations where the ACMA wanted to explore specific community attitudesand perceptions. This technique enabled the situations to be presented in such a waythat helped to assist in bringing ‘to life’ for the research participants what may berelatively unknown situations. Participants were asked whether they felt the personwould be able to give informed consent.The majority of scenarios were rotated across the groups, ensuring that six were usedin each group. In the three ‘older family’ groups, only three scenarios were shown asthe rest of the discussion time focused on consent involving minors.The discussion guide is in Appendix C.
Detailed findingsConsumers’ expectations of informed consentSituations involving informed consentConsumers in our sample associated ‘informed consent’ with agreements madebetween themselves and another entity or organisation. They were providing informedconsent on a regular basis, with some claiming this was happening daily, whereas forothers it was occurring on a monthly basis. Typical situations that consumers identifiedproviding informed consent for included: a financial agreement with a company in return for goods and services providing personal information in return for a service or potential gain, such as for surveys or competitions providing permission for others to make decisions or use their skills on their behalf, such as medical providers.Consenting to financial agreements in return for goods and servicesFinancial agreements in return for goods and services were the most commonsituations of providing informed consent identified by consumers. The majority ofparticipants were able to recall consenting to terms and conditions of a contract, inwhich they agreed to pay a specific amount of money for a set period of time. Themost commonly cited examples included consenting to a contract in relation to: telecommunication services and products gym memberships energy providers mortgages.The key elements consumers felt they always needed to know in these instances were‘how much will this cost me per month?’ and ‘how many months will the contract run?’.Feeling informed about these details often meant people were comfortable agreeing tothe terms and conditions in their entirety. I always check the ‘how much per month’ it is going to cost me, that’s the really important part ... and how long you have to pay that amount for. You want to understand if there are any hidden costs or ‘extras’ that you need but have to pay more for. It’s always in the fine print, but if you ask ‘how much is the maximum amount that you’ll pay?’ then you should be safe.Consenting to providing personal informationParticipants were also accustomed to consenting and providing personal informationto a range of organisations. People talked about providing contact details such asphone numbers, physical addresses and email addresses in a number of situationsincluding: entering competitions purchasing raffle tickets signing up to mailing lists using social networking sites purchasing goods online.They also mentioned handing over financial information including bank account detailsand credit card information, as well as other financial information required to run acredit check. They recognised that providing this information is compulsory in a
number of situations including money transfers, signing up for financial products orwhen using PayPal.Given the frequency and normality of providing personal information, on the whole,consumers were realistic about how their personal information, can, and may be used.Importantly, many consumers demonstrated a high level of understanding about thepossibility of their personal information being passed onto affiliates and third parties.There was an expectation that they will receive marketing material, resulting in mostparticipants actively looking for the box to ‘tick’ or ‘un-tick’. Several had set up specificemail accounts to receive the inevitable ‘mandatory’ material from competitions andnewsletters they have chosen to sign up to: I just use my Gmail account. When it gets too overwhelming, I close it and open another one. You just give them your hotmail address ... never the work one.Providing permission for others to make decisions or use their skills on yourbehalfProviding informed consent was also closely linked with some professional services, inparticular medical services. The majority of participants talked about providing consentfor a doctor, dentist, chiropractor or physiotherapist to treat them, allowing them tomake decisions that impact on their health and comfort.Participants noted that other professional services where similar consent is providedinclude financial and legal services. The assumption among participants was that byproviding consent, these professional services will use their skills and act in their bestinterest.Overall, consumers identified that in each of these broad situations, whether it isinvolving consenting with financial agreements for a company to pass on personaldetails, or for a company such as a medical provider to make decisions on aconsumer’s behalf, they recognise that they are ‘giving something up’ in return for aspecific benefit or purpose.Defining informed consent from the consumer perspectiveThe overarching aim of the research was to assist the ACMA in understandingcommunity attitudes, perceptions and understandings of what informed consentmeans to them. In addition, the research sought to explore participants’ views on theirrights and responsibilities in relation to informed consent across a variety of digitalcommunications technologies and services.The pre-task enabled participants to recall situations where they felt consent washandled appropriately (Figure 1) and inappropriately (Figure 2). In most instances,participants were able to recall several stories for both instances.
Figure 1 Examples of situations where informed consent is handled appropriately Signing a 24 PayPal- on the month mobile Phone plan internet phone contract > The terms and conditions > It was made clear that > The dealer read through were given to me to read they would need certain the terms with me and through and sign. While pieces of personal made sure I understood the amount of information information from me in how the contract works. to read in the terms and order to complete He went through every conditions were transactions. When I detail and marked off what substantial, it was entirely provided my info I first we have gone through my choice as to whether I had to agree to the terms with me, he explained wanted to read it in detail. and conditions and privacy things which I didn‟t The decision to enter into statement by ticking a understand and let me ask the contract and comply box. This was appropriate, questions with its terms was entirely straight forward and up to me based on necessary for me to take whether I signed the advantage of PayPal‟s document or not. All of the services provisions and exclusions were detailed for my reading, thereby leaving the final decision in my hands.Figure 2 Examples of situations where consent is handled inappropriately
As illustrated in the situations participants perceived to be handled appropriately(Figure 1), ‘understanding’ and ‘comprehension’ are the key elements identified asbeing essential when providing informed consent. A number of factors relate tounderstanding, and whether a consumer feels they can give informed consent,including: understanding the terms and conditions accessible language being used information delivered in an accessible format and layout a non pressured environment feeling comfortable and able to ask questions if not fully understood.In contrast, examples of situations when consent was handled inappropriately (Figure2) mostly related to instances where the consumer felt they did not fully understandwhat they were consenting to before agreeing. This could have been for a number ofreasons including: not fully understanding the terms and conditions due to inaccessible language, or confusing documentation due to the layout and format a pressured environment in which they felt hurried to do something, before understanding fully what they were agreeing to when the personal details requested were not relevant to the purpose of the agreement.From a consumer’s perspective, informed consent comprises having full information ofeach party’s obligations as well as understanding and comprehending the information(see Figure 3).Figure 3 Consumers expectations for ‘informed’ consent Informed consent equals Having full information of each parties‟ Understanding and comprehending the obligation information (the terms and conditions) This involves: This details: What is expected of the consumer The language used What the consumer can expect in return Implications / consequences for the consumer
Thus, participants believed that informed consent relies upon both the company andthe consumer having a thorough understanding of the situation. These fundamentalprinciples were perceived as the basic rights and responsibilities of each party in any‘consent’ situation.Consumers believed that a company has a responsibility to provide the full informationto the consumer. In turn, a company has a right to expect consumers have understoodthe information should they agree, in order to feel informed. Consumers alsorecognise they have a responsibility to understand the information about what they areagreeing to (see Figure 4).Figure 4 ‘Informed’ consent perspectives for company and consumer responsibilities Company Entity Consumer Information • Has a responsibility to provide the full • Has a right to expect the full information to the consumer information • Has a right to expect consumers to • Has a responsibility to understand the have understood the information should information about what they are they agree (to be informed) agreeing to (to become informed)From the pre-task, and during group discussions, consumers were able to describehow consent would best be handled and define ‘informed consent’ in a number ofways: Receiving the proper information before you make a decision to enter into a contract. Being given enough information to inform you of how giving your consent to some activity for use of your details might affect you. Informed consent to me means that I would have a fairly clear idea of what I was getting myself into from the information and facts supplied by the provider. The information received would assist me in making a decision on whether to go ahead or not with the product/service I was considering to sign up to/purchase. Informed consent suggests that a person agrees to a certain action taking place based on a reasonable person having sufficient information to make that decision. Providing informed consent means to me that I have read an agreement and understood the contents and have signed with consent. Being aware of all the conditions that you are agreeing to when you provide consent. Knowing all of the information regarding the product/service and choosing to accept the contract. Informed means that you are given information and have time to process that information. Where consent is given based on a person’s knowledge and understanding of the facts.
Providing ‘consent’ versus ‘informed consent’Consumers perceived there to be a clear difference between providing ‘consent’ and‘informed consent’. They identified that they often gave ‘consent’ but claimed that inreality, it was not always ‘informed consent’, as they defined it. This is because theyoften provided consent without a full understanding and comprehension of the termsand conditions of the agreement.In some instances, they recognised this occurred because they chose not to be fullyinformed. However, in other cases they felt the company was at fault as theinformation provided was not sufficient for them to feel fully informed.Reasons why consumers do not always choose to be fully informed whenconsentingConsumers readily admitted that they often chose not to read or listen to the termsand conditions. Many respondents provided examples of instances when they: scrolled to the end of the webpage without reading terms and conditions clicked the box without reading the offered information became distracted or bored and chose not to read blocks of text or listen to a salesperson felt the need to hurry through the agreement (self-initiated) became carried away with the moment and failed to feel fully informed.In these instances, consumers felt comfortable that they had not informed themselvesof the terms and conditions because they perceived few, if any, negativeconsequences. Hence, should they or the company fail to fulfil responsibilities orobligations, in their mind there would be: no, or very limited, financial consequences, involving only small amounts of money no, or extremely limited, risk of personal privacy being compromised, due to the amount of information provided or special measures taken to counteract this, e.g. a specific email account set up to receive spam.Importantly, consumers often admitted that they felt more comfortable when providingconsent involving situations with well-known brands. In these instances, they oftenchose to overlook the terms and conditions as they assumed that these companieswould not risk their reputation by involving unfair practices. I’m much more likely to read the terms and conditions when it’s for a company I’m unfamiliar with.Factors influencing consumers to try ensure their consent is informedThere are other situations when consumers endeavour to fully understand andcomprehend the terms and conditions and try to ensure their consent is always‘informed’. These situations include: when substantial finances are involved, particularly ongoing contracts with a set period of time where they want to know the ongoing and maximum costs when detailed personal information is required and there may be a risk of personal privacy being compromised when the brand or company are seen to be more ‘risky’ and there may be more to lose if they are unscrupulous.Consumers will always try to ensure their consent is informed if they are suspiciousabout why certain information is required in a consent situation. In these instances,they will often question why certain information is required. In some situations,participants explained they refused to provide this information as they felt it was notnecessary for the companies to know. This resulted in them not obtaining the service
or product they requested. Two examples, involving obtaining a quote on homeinsurance and an online competition, help to illustrate this: The person I talked to wanted to know too much information for a price on home insurance. He could have quite easily given me an amount without a street number, birth date, or phone number and it would have been sufficient. They wanted to know too many details about me—you should provide some in the event that you win a prize, but they don’t have to know your home address, your home phone number and everything else.These situations illustrate that most participants only felt comfortable givinginformation such as their date of birth and income when there is a direct need for thecompany to know this, such as the banks, credit cards and tax office requesting theinformation. Similarly, consumers felt there has to be a clear reason to provide acompany with your physical address as this is perceived to be more personal by manythan an email address.Factors affecting whether informed consent can be givenConsumers recognised that it was not always easy to give informed consent. In someinstances, they believed that companies make it purposely difficult for consumers tocomprehend the terms and conditions. The pre-task helped them to identify situationswhere they felt the process for obtaining consent was handled badly and in aninappropriate manner. Many reported instances where they did not alwayscomprehend the terms and conditions because: the language used made the terms and conditions inaccessible, with the use of legalese or technical, unfamiliar phrases there was too much information in the terms and conditions to comprehend at once, particularly when provided over the phone the environment meant they felt pressured or rushed. It’s almost like they make it difficult on purpose so you don’t read the fine print. I don’t feel it’s reasonable for the average person to be able to read 12+ pages of legal jargon and fully understand your contractual obligation. The staff member also made no attempts to talk me through the contract before I signed it and went off to help another customer leaving me to read the document. The terms and conditions were read to me at such a speed that it was impossible to understand or even hear what was being said.Some older respondents also commented on the physical barriers encountered whentrying to give informed consent such as difficulties hearing over the phone or beingable to read the ‘small’ print in contracts. The terms and conditions were very comprehensive and in language that was difficult for me to understand. I clicked ‘I accept’ without reading the text. You know at our age (retirees), your hearing is not the best and it’s very difficult to hear recorded voices over the phone. The terms and conditions were in a size four font, very hard to read and included the consent to rejoin the daily newsletter, which was at the very bottom in even smaller font.Consumers take issue when they feel the option of providing ‘informed consent’is taken away from themThe real concern arises when consumers feel they do not have a choice as to whetherthey can provide ‘informed’ consent. Consumers have an issue when they feel thatthey must consent, even if they do not fully understand the terms and conditions, orbecause providing certain information is necessary in order to obtain the service or
good. In some instances, consumers can feel as though they are battling againstskilled salespeople who are trying to capitalise on people’s emotions and persuadepeople to sign up for a product or service on the spot.Essentially, consumers can feel disempowered in some ‘consent’ situations as theyfeel the power lies in the hands of the organisation they are dealing with. They caneither choose to give ‘uninformed’ consent or make a decision not to sign, resulting inthem not obtaining the product or service they require. In order to explore consumers’issues and concerns further, the next section describes people’s attitudes towardsproviding consent for different products and services.Concerns with providing informed consent for differentproducts and servicesContracts with telecommunication providersContracts with telecommunication providers were the most commonly cited example ofgiving consent across all groups. It was clear that for some consumers providingconsent had been a smooth process and they felt the situation had been appropriate.Participants’ remarks about appropriate consent processes included situations whenthe consumer felt non-pressured and had the opportunity to ask questions if theydesired. They also felt they were provided with sufficient information to feel fullyinformed if they chose to. He talked me through each paragraph. He asked me if I understood and had any questions before moving on. And he was very patient with me. He pointed out the most important things (amount per month, length of contract), then left me with it to read, and then asked if I had any questions. After each part he stopped and asked me if I understood before moving on (over the phone). I had to make myself listen, but I understood.However, for other participants the consent process was thought to be inappropriateas they felt they had not been able to provide ‘informed’ consent. In these instances—and particularly in situations when consent process was handled over the phone orface-to-face—participants felt pressured, unclear about particular information, andunable to ask questions. The salesperson went through it really fast—told me to sit there and read it—went off and served someone else … and I just felt pressured and hurried. I don’t have a clue what I signed. There were about five people waiting to be served, and I just felt the questions I was asking were stupid to them. You can’t absorb everything they are saying (over the phone). You only hear cost per month.Whether people have experienced positive or negative situations, overall expectationsin regards to providing informed consent for telecommunications contracts are verylow. In these instances, often consumers felt they had no power in the consentarrangement, given that they often felt rushed or pressured through the consentprocess. They felt frustrated that there were no grounds to negotiate. Participantsexplained they often felt they had to sign or agree to the contract because theyneeded the product or service and were not left with any other choice. You’ve got no choice. You want the phone, you agree to what they say.Their expectations are that all telecommunication companies are just as bad as eachother in this respect, with all of them giving very little, or no power, to the consumer.
No differentiation was made between the ‘big brands’ and the lesser known providers,as the consent process with regards to signing a contract was thought to be verysimilar.It appeared that consumers were more likely to complain about the consent processassociated with telecommunication providers than with other companies with whomthey have contracts. It can be hypothesised that this may be because consumers arelikely to change contracts with telecommunication providers more frequently than theyare with other companies, such as energy providers. For this reason, they may haveexperienced a greater number of issues, or it may simply be more top of mind.It became evident throughout the discussion and through the use of scenarios thatconsumers held three main concerns in relation to telecommunication contracts.These key concerns included: changes in terms and conditions not being provided all the information use of legalese or unfamiliar language.Changes to terms and conditions of a telecommunication contractSome consumers spontaneously raised the fact that telecommunication providers canchange the terms and conditions of a contract as an issue, whereas others wereshocked when it was explained that this was possible. In order to explore this issue,specific scenarios were used in the group discussions.Consumers believed the ability of providers to change the terms and conditions of acontract illustrated the perceived power imbalance between the consumer and thetelecommunication provider. Consumers recognised that they have to sign up to acontract for a set period of time, with specific terms and conditions, and are penalisedif they want to change the contract. However, if a telecommunication provider wants tochange the service or terms and conditions at any point, they are able to do so. Thispractice was regarded to be unfair, as in their mind, it changed the purpose of thecontractual agreement. They found it particularly unacceptable when the terms andconditions changed and altered the nature of the product significantly. Often particularcharacteristics, such as time periods in which to make cheaper calls, were the reasonthey chose that provider in the first place.At a minimum, it is believed that consumers should be given time to acknowledge thechange in terms and conditions of a contract. Participants believed that they have aright to be aware of changes before they are implemented, allowing them to decidewhether to accept them.Scenarios were used to explore consumers’ reactions to a specific issue, whereby atelecommunication company notified changes to terms and conditions via email. InScenario A, changes to the terms and conditions to landline call charges were made,and in Scenario B, conditions to the internet charges were made. In both instances,the key issue to explore was whether consumers felt it was acceptable that acustomer’s continued use of the service is acceptance of these terms and conditions,as is currently the case. Participants were also told that in Scenario A, Jane’stelecommunication company uses a Standard Form of Agreement (SFoA) forcontracting with customers. She was sent a summary of the SFoA in the post after shesigned up.
Reactions to Scenario A: Assumption that a customer’s continued service isacceptance of changed terms and conditionsFigure 5 Scenario A Issues explored: Jane signed up to a new contract over the phone with a Telecom Telecommunications company company to get the internet and landline at home. At the time she notifying changes to terms & verbally agreed to receive her bills in hard copy by the post. conditions to landline call charges She opted for a particular deal to make cheap calls between 8pm via email and 6am. Some time later she makes several long-distance calls • Assumption that a customer‟s between 8-10pm to tell her friends about her upcoming overseas continued use of the service is Providing trip. informed consent? acceptance of these terms and On 4 April she logs on and finds an email from her Telecom conditions (also stated in the company sent on 2 April that informs her that the time period in Standard Form Of Agreement (SFoA) which she can make cheap calls has been changed to between 12 midnight and 6am. This means her calls from the previous night would be charged at normal long distance call rates which are more expensive. Jane does not remember being asked for her consent to allow notices of changes to her landline plan to be advised to her via email.The key issue participants identified in Scenario A was that Jane was not informedabout the changes to the terms and conditions in advance of them taking effect.Subsequently, they felt Jane’s choice and option to opt-out of the terms and conditionswere taken away from her, as no time was allowed between her awareness of thechange, and when consent was inferred by continual use of the service.In Scenario A, given that the terms and conditions were described in the phone calland then provided in writing, as per the Standard Form of Agreement (SFoA),consumers identified that Jane had actually provided consent in the initial agreementfor changes in the terms and conditions to occur. However, they still felt that informedconsent should also be required for a change in terms and conditions, as per theprocess described above.Ideally, acknowledgement of the customer having read about the changes would berequired for the terms and conditions to be initiated. However, many consumersexplained they were realistic in their views and stated that they would find it moreirritating to acknowledge the change. Therefore, most people felt that a minimalcooling-off period, such as 14 days, should be allowed between making consumersaware of the change and the change taking effect. They also felt that sufficient timeshould be included to receive the SFoA in hardcopy, given the initial agreement wasby phone. This situation was also made worse because the fundamental purpose ofthe relationship was to enable her to make cheap calls, which was altered by thechanges to the terms and conditions.This situation was seen to reflect the sense of powerlessness people feel in regards totelecommunications providers. In addition, participants also felt that Jane should havebeen sent these changes in the post, as it was reasonable for her to expect to receivethem in the same medium she had agreed to receive her bills, rather than in emailformat.
I suppose youd hope after she signed up on the phone they send her a hard copy … like when I upgraded my phone plan and then X sent me something saying this is what you signed up for, youve got 28 days, if youre not happy with it let us know. It makes the whole signing up for it in the first place pointless, because they can just change it to anything they want. Most likely, there needs to be a grace period. Legally she doesn’t have a leg to stand on because they told her.Reactions to Scenario B: Assumption that a customer’s continued service isacceptance of changed terms and conditionsFigure 6 Scenario B Issues explored: Brian signs a contract with an Internet Service Provider. There is a mechanism („a throttle‟) in place that ensures that if he reaches his Telecommunications company download limit the speed of his internet connection would slow notifying changes to Terms & down to „dial-up‟ speed and he would not be charged for any Conditions to his internet charges excess download limits each month. via email A couple of months later on May 5th Brian downloads a large data • Assumption that a customer‟s Providing file containing pictures and videos from his friend‟s overseas trip. continued use of the service is informed consent? However, after doing this he reads an email which was sent on May acceptance of these terms and 2nd from his Telecom company which explains that the terms and conditions (also stated in the conditions have changed. It‟s now possible for him to download at standard form of Agreement (SFoA) his maximum speed beyond his download cap and he will be charged an additional fee for each Mb of data. It also explains that he could apply by phone or online to the Telecom company to have the „throttle‟ in place on an ad hoc basis, which means he has to be responsible for knowing how much data he downloads each month, so that he can apply for a throttle when it is needed. After reading the email, he realises that he has exceeded his download limit this month and will have to pay for the extra downloaded Mbs.Consumers reacted in a similar manner to Scenario A, given that in this instance Brianwas also not given any time to acknowledge the changes to the terms and conditions.The situation was perceived to be worse than Scenario A in that Brian had to use theservice (i.e. email) that signified his continued agreement to become aware of thechanges in the first place. If he didn’t read the email on that day, then he would be stuffed. I don’t think it matters if he gets it by post or email. As long as he is given some time. It’s not the form that he has been contacted that’s the issue, it’s the length of time that he has to make an informed or uninformed decision. You can’t make it so that just by continuing with using his internet means he’s read the agreement and consented to something. Silence doesn’t mean consent. They should be advising their customers this will take place at some point in the future and this will start from this period‘.Two other scenarios were used to explore specific consumer reactions totelecommunication providers asking consumers to waive their rights under theCustomer Service Guarantee (CSG). Participants were asked to read the Scenario (Hor I) and were spontaneously asked whether they noticed anything specifically. Only
afterwards was it explained to them what waiving the CSG would actually entail. Veryfew participants had heard of the concept of waiving Customer Service Guaranteerights. They were often surprised as to the arrangement, until it was explained that itusually occurs in exchange for a specific service, involving cheaper rates.Consumers were told that ‘the Customer Service Guarantee is a standard which saysthat phone companies, including some VoIP service providers, must meet minimumperformance requirements for specified services and compensate customers whenthese are not met. The key performance requirements are:1. guaranteed maximum connection periods2. guaranteed maximum rectification periods if there is a fault3. attendance of appointments by service providers within a certain timeframe.Under certain circumstances, the phone company may propose that the customer canwaive their rights to the CSG. The proposal must clearly state the protection and rightsthat the customer is forgoing and also they must provide the customer with asignificant benefit, such as a substantially cheaper price, that would result fromaccepting the proposal’.The ACMA was interested in gauging responses to two different situations involvingwaiving CSG rights, given that this is being offered increasingly frequently with theemergence of more providers. Scenario H involved a situation where the CSG waiveris embedded into the general service agreement of a telecommunication contract andwas explained to the customer over the phone. The second example, Scenario I,referred to a CSG waiver component that a customer read when signing up to acontract online.Reactions to Scenario H: Customer Service Guarantee waiver (via phone)Figure 7 Scenario H Jeremy is on the phone and is about to sign up to a Voice Over IP Issues explored: (VOIP) internet telephone service. Embedding a Customer Service Guarantee (CSG) waiver The following information is read out to him over the phone: component into the general “Red Company VOIP is an internet telephone service. Service availability and call quality service agreement of a may differ from a standard telephone service. You need a broadband connection, power supply and handset. There is no charge for local calls or national calls, or calls to other Telecommunications contract, Providing Red Company VOIP services. Calls to Australian mobiles are $0.29 per minute and expressed to the customer over informed consent? international call rates for VOIP services are available on our website. Red Company VOIP is for normal, personal, domestic use only. If the number or duration of the calls made the telephone. by you is three times our customer average, or is such that affects the network for other users we may on notice suspend or cancel your service. Red Company VOIP is a low cost service, available only to customers who waive customer service guarantee rights. Details are on our website. By entering this agreement you waive those rights, and you acknowledge that VOIP is not suitable for a primary line and should not be considered reliable in an emergency. Please note that on a 24 month contract term the total minimum charge is $####. These services are supplied as a bundle – they cannot be separated. If you break the bundle you may lose all services and early termination fees may apply. These services are provided to your nominated address, and if you relocate we may not be able to provide the same offer and you may incur relocation or cancellation charges. Should you terminate your contract before the agreed minimum term ends and early termination fee of $### pro-rata over the remaining months of your contract will apply. We may email accounts or notices to you, and accounts must be paid by direct debit or a $# fee will apply. Your monthly bills will be made available to you online – there is no charge for online bills but you will be charged $# if you require a paper bill. If you need to contact us our number is 1800 ### ###. This is a legal agreement between _______ and _______. Do you agree to these terms? ”
Many doubted that in this instance the customer (Jeremy) would have understood oreven heard the information about waiving CSG rights. Often people do not concentratefully whilst on the telephone, especially if the call is provider-initiated. Participants alsocommented on the fact that it would be difficult for him to take in the sheer amount ofinformation over the phone.However, the key issue was that the provider did not provide appropriate access toinformation on CSG rights, thereby failing to give the consumer a choice as to whetherthey want to feel fully informed. By only providing the information verbally and statingthat ‘details are on our website’, the full information was not made accessible by theprovider prior to the agreement being made.Participants felt it was inappropriate to direct customers to a website for details, whileasking them to consent on the phone, given that it was unlikely they would visit thewebsite whilst on the phone. People also commented that a minority of customers maynot already have access to the internet.In addition, consumers believed Jeremy could not feel fully informed because therewas no specific information about what the customer average of the number andduration of calls was, making it impossible for him to understand the full terms andconditions. They ask you to agree now and they don’t tell you what the information is. The information is not in the format you need it in. He can’t exactly go and check the website whilst he’s on the phone. But I am getting a broadband service so how can I get on the website to check the details before I agree to the terms and conditions? Three times the average? They don’t tell you about what the average is. Maybe they should offer this stuff to you in writing first, before you make your decision … or maybe you should have a cool-off period or something? You are asking me to waive rights that I didn’t even know I had in the first place.Ideally, participants felt that in order for consumers to be able to give informed consentover the phone, telecommunication providers should give a description of their CSGrights and what it would mean to waive these rights, or at least provide access to it in asuitable format. Ideally, they believed a provider should offer to send out a hardcopy ofthe agreement including the CSG rights, allowing the customer to choose whetherthey wanted to receive a copy. Many participants spontaneously suggested that acooling-off period be implemented, given that it would allow the customer theopportunity to become fully informed of the specific terms and conditions.
Reactions to Scenario I: Customer Service Guarantee waiver (on internet)Figure 8 Scenario I Issues explored: Mary is about to sign up to a new contract with a landline Mention of a Customer Service provider online. During the process she comes across this Guarantee Waiver component, screen asking for her consent: when a customer is signing up to a Telecommunications contract over You must select „I Agree‟ from the drop down box below before you may continue. the Internet. Providing informed consent? I agree I understand the protections and rights under the Customer Service Guarantee, and agree to waive all protections and rights under the Customer Service Guarantee with respect to the provision of the Service by Telco Y to me. I enter into this agreement freely and voluntarily. When Mary is about to sign up with her landline provider online she reads that there is a cooling off period as it says: This waiver will take effect seven days from the date of you agreeing to it unless you notify Telco Y that you no longer wish to waive your rights under the CSG. If you do so notify Telco Y then Telco Y will not provide the services to you.In this example, participants did not feel that Mary was provided with sufficientinformation for her to give informed consent. There was no reference online to anysources of information about CSG rights and what she would be waiving. As withScenario H, consumers felt that it should be the provider’s responsibility to display afull description on the website or provide a hyperlink to this information. They alsobelieved a cooling-off period should be offered. However, a cooling-off period on itsown without providing access to a description online was regarded to be insufficient,given that consumers are unlikely to use the cooling-off period to voluntarily look upthe CSG, especially if they have not been provided with any direction to sources ofinformation. This is not good enough, you can’t see what your rights are. There should be a link so you know what the guarantee is about.In Scenario I, the authoritative language of ‘You must select’, prompted a feeling ofnegativity towards telecommunications providers. This was indicative of the fact thatcustomers feel telecommunication contracts are non-negotiable.In addition, the layout of displaying the ‘tick the box’ above the description, was seento add to the potential to simply ‘tick the box’ before reading the agreement below.They felt the box should be placed underneath the description, as they were morelikely to read the terms and conditions first. They’re trying to get you to miss it by putting the box there.Failing to provide access to all relevant information about the contractConsumers also believed that sometimes telecommunication providers do not alwaysprovide all the necessary information in order for them to give informed consent.Consumers believed they have a right to expect the company has a responsibility toprovide all the relevant information. Yet, they acknowledged that full details of theterms and conditions are not always included within initial agreements. For example,some providers may only refer customers to ‘further details on the website’, as
opposed to providing direct access to the full terms and conditions. Consumers did notfeel this could be ‘informed’ consent, as they are not given the opportunity to informthemselves if they wanted to, prior to agreeing to the terms and conditions.At a minimum, participants felt that a cooling-off period should apply in situationswhere all relevant information is not provided at the time of agreement, so that theconsumer can access the information if they choose to.Use of legalese and unfamiliar language in telecommunication contractsRelevant information in telecommunication contracts was not always perceived to beaccessible due to a lack of comprehension and understanding. Consumers felt that theuse of legalese and unfamiliar terms among telecommunication providers wasperceived to be deliberate in some instances. They write it so you can’t understand it. It’s written by lawyers.In the scenarios (A and B) exploring customers’ reactions to changes to terms andconditions, many participants found it difficult to comprehend the language used in theSFoA. I don’t even understand it, reading it here now. (Consumer in group reading example SFoA) I’d never be able to follow something like this at home, it’s way too complicated.As result, the majority of consumers commented that often they did not understand allthe terms and conditions they were agreeing to. Even those who could comprehendthe information did not feel particularly comfortable with the agreements. There was astrong preference for contracts to be written in layman’s terms that they would bemore likely to understand, however they recognised that this was unlikely to change. You know it’s written by lawyers to protect the company at all costs. There won’t be any loopholes.Almost everyone reported a preference for receiving a hard copy of atelecommunication contract on sign up, regardless of demographics, levels ofeducation or digital media competencies. It also did not make a difference how theyhad initially agreed or signed up to the contract, whether it was in store, over thephone or on the internet.Most participants claimed they wanted to keep a hard copy of the contract and theterms and conditions on file for reference. Knowing they owned a hard copy providedsome sense of control and power in the relationship between consumer and provider.They claimed they liked to have a hard copy to check on what was agreed to initially, ifand when, terms and conditions change. I like to know exactly what I’ve signed up for. I keep a hard copy just to check on what I agreed to whenever they change it.They believed that when a consumer switches telecommunication providers or plansin these instances, they should definitely receive a hard copy of the contract. This isthought to be regardless of whether the change is initiated by themselves or theprovider, and irrespective of the medium used to contact the provider. If it is provider-initiated, there is an expectation that time will be provided for the consumer to readand accept the new terms and conditions.
Provision of personal informationConsumers also identified several situations where giving consent involves disclosingpersonal information. They recognised that in these instances companies will oftenshare the information with affiliates or third parties. Some of the situations recalledincluded: competitions—both online and face-to-face completing forms for one-off transactions, for example staying in hotels, booking flights signing up to loyalty cards, for example store cards providing details to a service provider, for example hairdressers, vets, doctors entering into ongoing contractual agreements, for example, phone contract, energy providers, mortgage providers.As a result, most participants were highly conscious of the possibility of receivingspam. There was a relatively high level of understanding that they receive it becauseoften personal details are passed onto affiliates and third parties, either with or withoutthe consumer’s knowledge or agreement. People defined spam as ‘unsolicitedmarketing material’ and recognised that it could be received via a number of channels,including email, SMS or by phone. People’s concerns with receiving spam includedthe annoyance with the sheer volume of unsolicited information and the possibility ofreceiving electronic viruses. Emails offering penis enlargements or telling you that you are Nigerian royalty are often sent to me.In many instances, they recognised that they have received other materials becausethey have unknowingly ‘ticked’ a box or not ‘un-ticked’ one. The potential for detailsbeing sold to unknown organisations is what most people try to avoid as much aspossible. However, consumers believed this is not always possible to know from theinformation they are provided with, or from the assumed intent of the agreement.Raffle tickets were cited as an example where this is not seen to be done fairly. Manyparticipants believed that the cost of each raffle ticket should be seen as the cost ofentry, rather than the collection of personal details. People felt that personalinformation should only be provided in case the organisation needs to contact theentrant on winning. They felt it was wrong that the organisation collected personaldetail to sell and pass onto other entities. Raffle tickets are the worst. It just doesn’t seem right that they sell your details on. You buy the tickets as a bit of charity anyway. Providing personal info such as name, address and contact number on a raffle ticket is provided in the event that you win a prize, however this info is being used to seek support by providing additional donations or requesting that you assist by selling tickets for the organisation.As a general rule, consumers expect their consent to be sought about receivingmarketing information and that information will not be passed to ‘affiliates’ or ‘thirdparties’ unless explicitly stated otherwise. This information is regarded as essential fora consumer to be able to make an informed decision.Notably, participants felt more comfortable consenting when their personal details arehanded to ‘affiliates’, as opposed to ‘third parties’. They understood ‘affiliates’ as beingorganisations or companies that are directly associated with the organisation of firstcontact. ‘Third parties’ are understood as being any other organisation that maypurchase personal details from the organisation they first gave their consent to.
Attitudes towards ‘opt-in’ or ‘opt-out’ consent processesParticipants were asked whether they had a preference to ‘opt-in’ or ‘opt-out’ inrelation to receiving further marketing materials or passing on personal details. Therewas a definite preference for an opt-in situation, as this avoids the potential for‘missing’ the box and, therefore, accidently providing consent. It implies a definitiveaction by the consumer.They disliked the fact that in some circumstances consumers must tick the box to‘NOT’ receive marketing material or have to ‘un-tick’ an already ticked box to ensurematerial is not sent to them.Several respondents commented that friends and family were increasingly handingover their personal details to companies, particularly when entering competitions, aswas the case in Scenario G. Here it asked for friends’ email addresses so that theycould also be entered into the draw. Many believed that this was adding to the amountof spam they were receiving. They felt it was a particular issue when the individualthen has to ‘opt-out’ to stop receiving the material.Collection of personal details through entry to surveys and competitionsParticipants understood that the collection of personal details and resulting spam isoften the price of entry into a competition. In order to explore consumers’ perceptionsabout this issue, two scenarios were used in the group discussions.Reactions to Scenario F: Collection of personal information by businesses andaffiliates when entering a surveyFigure 9 Scenario F Issues explored: Consenting to personal information collected by businesses and passed onto affiliates when entering a survey Chloe often enters online surveys for a chance to win Providing informed consent? prizes. She comes across a competition to win $15,000 prize money. Before she starts the online survey she is shown information on the home page and a guidance notes page. She skims over it and ticks the box that says she‟s read the Survey Guidance Notes.In this scenario, Chloe entered a lifestyle survey online, with the chance of winning aprize. She was provided survey guidance notes, prior to entering any information. Sheskims over these and ticks the box to say she has understood them.Participants believed that Chloe could have provided informed consent if she hadchosen to do so, as they believed the survey company had provided sufficientinformation. They felt the company had fulfilled their responsibility to provideinformation in an accessible manner, given that: