Read the fine print: An Instacart case study

Recently, a CBC Marketplace investigation revealed that Instacart was allegedly using 'hidden markups' on groceries purchased by customers. In its defence, Instacart said the practice is brought to the attention of consumers through a 'small pricing disclaimer'.

Generally speaking, the courts want to ensure that key legal terms are conspicuous in order to actually be binding. This is especially the case where one party is a business and the other is a consumer because rarely do they sit down to negotiate a minor retail transaction. The courts want to see that the party imposing key terms made a genuine effort to ensure those terms were made plainly visible to the other party. The more important a term is, the more conspicuous it ought to be.

So many websites and apps impose terms and conditions on users. They are often long and filled with legalese. There is an art to doing it right in an audience-friendly way, and not all lawyers are artists! As a result, it’s not always clear how the courts will treat this fine print.

Be honest, do you scroll through them all, ponder what each means and then only click submit once you’re in full agreement?

What I see is the intersection of the law, public/strategic relations, marketing and ethics. While the practice might be legal, that doesn’t mean it’s the right thing to do and properly values a key stakeholder. If the company truly thought it was doing something of benefit for its customers, why are so many shocked to learn about the price markups? If they truly thought they were doing the right thing, why not be crystal clear about it instead of relying on fine print?

Publicly referring a major stakeholder to the fine print and legalese is a sign of a problem. It seems only marginally better than 'no comment'. It harms their relationship and reputation with current and potential customers. It also invites some consumers who feel burned to launch a class action or file consumer protection complaints, partially because they don't feel the company is listening to their concerns.

How did this happen?

Did the legal team advise the company it was legal and that was the end of the discussion? Was anyone worried about reputational risk? Did the PR team, who is supposed to represent stakeholders and value their input, do any type of market research to see if this would be a problem? If so, did they identify it for decision-makers? Did the marketers not stress the importance of transparency?

If the core of your business model, once it becomes plainly visible, annoys your own customers, you have a reputational problem that's not going away.

It’s incumbent on the legal, public relations, marketing and finance teams to work together to identify the good, the bad and the ugly about actual and potential business models before they are implemented so decision-makers can make informed decisions and make changes.