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Re: ACTION-295: Should v. Must

From: Walter van Holst <walter.van.holst@xs4all.nl>
Date: Fri, 19 Oct 2012 20:50:48 +0200
Message-ID: <5081A108.7030009@xs4all.nl>
To: public-tracking@w3.org
On 10/19/12 4:22 PM, David Wainberg wrote:
> Hi Walter,
> 
> You are a lawyer, yes? I have not had the opportunity to try to
> interpret the definitions of RFC2119 in a legal context. Can you explain
> how you have counseled clients when implementing a SHOULD provision of a
> standard where there is legal liability attached? Do have any examples
> of bases under which you have felt comfortable counseling a client that
> they can ignore a SHOULD requirement?

Dear David,

I do not practice law outside the Netherlands and even there I do not
represent anyone in court. Moreover, I am invited because of my
involvement with civil society (Vrijschrift.org), I am not participating
in my professional quality of a legal consultant.

Having said that, if a client were to ask me about RFC2119 or if I were
to assist an attorney in a case about RFC2119, I would feel rather
comfortable to counsel such client or to have such an attorney argue
that the SHOULD requirement can be ignored if there is a pressing need
to do so.

Basically, in most civil law jurisdictions (and I've been told several
times by people qualified to practice in common law jurisdictions that
the picture in those jurisdictions is not fundamentally different) the
'customs of a trade' weigh heavily when interpreting for example a
contract. This standard may be construed as a contractual obligation in
the future to which a similar interpretative framework would be applied.

As such, in any court case it would be relatively straightforward to get
someone like Roy to the witness stand and explain to a judge that SHOULD
is close to, but not entirely the same as, MUST. And that any deviations
from the standard put a burden of proof on the deviating party that the
circumstances justify such a deviation. Basically my advice would be
that violation of a MUST requirement is an objective violation of the
standard and that it will be exceedingly difficult to argue that the
deviating party nonetheless was in compliance. Whereas a SHOULD
requirement allows for corner cases in which a deviation is presumed to
be in violation of the standard but in corner cases this nonetheless can
be justified.

At the end of the day it is not that difficult. MUST means compliance at
_all_ times, SHOULD allows for non-compliance when this would result in
patently ridiculous situations. I know that common sense is not that
common, especially not among lawyers, but that is what it boils down to
eventually.

By invoking RFC2119 we're invoking interpretation of the DNT standard
through the prism of web standardisation engineers. Which given the
nature of any W3C standard is the right prism to me. This ultimately is
a technical standard and regardless of the policy implications I think
it should be interpreted from a technical perspective first. I know that
lawyers tend not to enjoy having to take the back seat to engineers, but
this is where they belong here.

Regards,

 Walter
Received on Friday, 19 October 2012 18:51:18 UTC

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