[whatwg] do not encourage use of small element for legal text (was: Pre-Last Call Comments)

[Andrew W. Hagen]

Responding to Kristof Zelechovski.

I have a copy of the Constitution of the United States on my web site.
That is a legal text. It also qualifies as "legalese," a derogatory term.
If I were to change it to HTML 5, the current spec encourages
me to place the entire Constitution in small elements. The same logic
would apply for any legal document, including receipts for e-commerce
purchases. I find that unfortunate because it makes the HTML 5
spec look foolish and irrelevant.

Encouraging use of small print for legalese also encourages this:

<h1>
<a href="continue.html">
Welcome to the BigCo web site. Click to continue.
</a>
</h1>
<small>By clicking above, you agree that BigCo can charge your
credit card $10 per visit to the BigCo web site per page clicked.</small>

Now that might not stand if challenged in a court, but it
is definitely not the kind of thing that the HTML 5 spec should
condone. And yet, in its current form, it does. What ought to constitute
outright fraud is encouraged by the HTML 5 spec in its current form.

The HTML 5 spec also encourages, in its current form, placing any legal
disclaimer in a small element. Therefore, we could have this
result.

<h1>BigCo Services: We guarantee our work</h1>
<small>Except between the hours of 12:01 am and 11:59 pm.</small>

That is a deceptive use of a disclaimer that the HTML 5 spec
encourages. This is most unfortunate.

There is no middle ground here. Encouraging legal text to be in a small
element except "when it is deceptive or inappropriate" would at best
lead to confusion.

I'm not saying that everyone who puts legal text in small print is doing
something bad, but generally speaking, that is a practice to avoid if
possible.

By making the changes I suggested, people can still use the small
element for legal text. They can also choose other markup.  It's just
that the HTML 5 spec will do the right thing, and not go out of its
way to make legal text small and hard to read.

Andrew Hagen
contact2009 at awhlink.com