Engineering Consent: Using Technology to Create Informed Consumers

Abstract

The title of this chapter contains a deliberate dissonance. The verb “engineer” implies a degree of artificiality, a skillful arrangement for “something” to occur or even a deliberate manipulation. The noun “consent” is associated with decision-making, voluntariness, autonomy and agreement. Combined, the two terms denote a situation where consent becomes contrived and fictitious. Unfortunately, such engineered consent seems to be the norm, especially online. The point made is this chapter is simple: theoretically, the same technologies that are used to engineer consent, can also be used to facilitate actual, informed consent. In practice, however, we must acknowledge that, technology aside, the ultimate constraint are the consumers themselves - their limited attention spans, cognitive vulnerabilities, haste and desire for convenience. We must also acknowledge that the principles of contract law are permissive in the sense that they do not require consent to be informed or the terms of the transaction to be actually communicated. Any efforts to create informed consent depend on the goodwill of the business that designs the online transacting interface. Lastly, we must assume that improving the design of the contents of a contract - be it in terms of layout or in terms of a better organisation of information - to better convey its substance must be preceded by informing the consumer that a transaction is taking place and that such transaction is governed by contractual terms that should be reviewed and consented to. The challenges of designing the contracting interface precede those that relate to the design of the contract. The former concern the process of contract formation, the latter - the contractual contents. This chapter addresses the contracting process as the main challenge lies in encouraging consumers to engage with the information (i.e. read the contractual terms). The manner of presenting terms only becomes important once the consumer has decided to look at the contract.