Zombie contracts, dark patterns of design, and 'documentisation'

Standard form consumer contracts (SFCCs) are drafted by businesses and presented to consumers on a non-negotiable basis, commonly appearing as Terms of Service (ToS) agreements in the margins of many popular web pages. This genre of contract is afforded its 'standard form' so as to increase the efficiency of transactions and save costs, which are ostensibly passed on to consumers. Since one party is generally less powerful in terms of access to information and resources, however, these contracts are often acknowledged as imbalanced and have been of concern for consumer rights in recent years. While some have characterized these issues as a 'duty to read' for consumers or as egregious terms and weak disclosures by drafters,' this project suggests at least part of the issues exist from a lack of consideration of the document itself (i.e., medium, format, authenticity, reliability, stability) and the processes that deem it 'standard.' It makes use of the disciplines that specialise in these topics, including document theory, library and information science, diplomatics, standards of records management, textual criticism and bibliography, and evidence to offer a revised perspective on SFCC issues and a new measure of assessment. Ultimately, it concludes that current governance is not adequate to address the issues of these agreements and suggests three principles, or shifts in concept: 1) standardisation, not standard practise; 2) explanation, not notification; and 3) documentation, not integration.