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[whatwg] do not encourage use of small element for legal text

From: Andrew W. Hagen <contact2009@awhlink.com>
Date: Thu, 02 Jul 2009 14:25:47 -0500
Message-ID: <4A4D09BB.7080008@awhlink.com>
The text from the current spec is, "Small print is typically
legalese describing disclaimers, caveats, legal
restrictions, or copyrights. Small print is also sometimes
used for attribution."

By suggesting it is typical, that implicitly encourages people
to use small print for legal text.

One of HTML 5's design principles is to take the predominant
practice of what people are doing on the web, and turn that
into the standard that all HTML 5 authors should follow.

Certain sections in the spec are normative or non-normative.
It does not make sense for the HTML 5 spec to make a non-
normative comment in a normative section. Furthermore, it is
fallacious to argue that something is not "encouragement"
but is "normative."

Leaving any suggestion in the HTML 5 spec that legal text
typically is, could be, or should be in small print could do
a disservice to anyone reading the spec.

Take a hypothetical example. Joe is the owner-operator of
SmallCo, a building contractor. Joe decides to create a web
site for his business. Being technically proficient, he
consults the HTML 5 web site. He reads how the <small>
element is typically used for disclaimers, etc. On his one-
page web site, he posts the following notice:

<p>Your 100% satisfaction in the work of SmallCo is
guaranteed. <small>Guarantee applies only to commercial
buildings. </small></p>

Joe gets a new customer from the web site. The customer has
him build a residential house. Joe does the job. The work is
done well, but the customer is not 100% satisfied. The
customer wants various changes that Joe does not consider
necessary. Joe and the customer have a serious dispute. The
customer claims that $45,000 worth of work must be performed
for the customer to be 100% satisfied. Joe claims that his
obligations are already fulfiled, and the 100% satisfaction
guarantee does not apply to the customer's job because his
residential house is not a commercial building. They take
their dispute to court.

In this particular case, the disclaimer Joe posted on his
web site becomes a hotly disputed issue. The judge takes
special note that Joe had his disclaimer in small print. Due
to the law of the particular jurisdiction they are in, Joe
loses. Joe now must perform a great deal of work for no pay,
or pay the customer $45,000 to hire another contractor. The
financial fortunes of SmallCo and of Joe have taken a
terrible turn for the worse. Joe feels like the HTML 5 spec
gave him bad advice.

Whether legal text may properly appear in small print has
been the subject of numerous lawsuits of greatly significant
value, at least in American law. The implicit encouragement
to use small print takes the lexicographical mandate of
"seeing what people are doing on the web and then making
that the standard" too far. It should be impossible for
anyone reading a tech specification to think that they are
getting legal advice. Yet that is not the case in the
current HTML 5 spec.

The current situation in the spec is really bad. As it reads
currently, the spec encourages fraud. This should not be
acceptable considering how much of a benefit HTML 5 will be
otherwise.

Additionally, the word "legalese" has a strongly negative
connotation . Using the term "legalese" as a stand-in for
any legal text implies that all legal text is suspicious or
useless at best. The spec should not sit in judgment on the
law. Espousing a vaguely anarchical political point of view
is OK, but that should not be part of HTML 5.

What should be done is to remove all references to the law,
legalese, and such from the small element section. If people
want to put something legal in a small element, let them
make their own choice. Let them come up with that generally
bad idea on their own, or perhaps in consultation with their
own attorneys who can take responsibility for their error if
the use of the small element causes some problem. What the
law actually says will vary according to your jurisdiction.

The problem with a <legal> element would be that it does not
correspond to any discrete set of text. If a web page
becomes the subject of a court case, the court is likely to
look at any part of the web page it thinks is relevant, not
just the part contained in a <legal> element. Thus, the
rationale for a <legal> element would not carry through to
the real world. For example, the following would not result
in an effective legal defense:

<legal>SmallCo guarantees 100% satisfaction</legal>
<small>except for residential buildings</small>

Furthermore, we should not create a <legal> element in
anticipation that in the future at some undetermined point
it is conceivable that some legislature will somehow connect
the legal status of text on a web page to its appearance in
a <legal> element. It's too speculative. That would prove
unworkable anyway.

To sum up, legal text generally should not be in small print,
because legal text is important and should be easy to read. The exact
legal consequences of legal text in small print will vary
depending on the facts of the case and on the jurisdiction.
The HTML 5 spec should not make assertions, either normative
or non-normative, about legal matters. The HTML 5 spec is
going to be a terrific advance, and removing this thorn from
its side will only improve it.

Andrew Hagen
contact2009 at awhlink.com
Received on Thursday, 2 July 2009 12:25:47 UTC

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