Fine Print as “Surrealist Masterpiece”
posted by Frank Pasquale
The Treachery of Images[,] probably Magritte’s most famous [painting], shows a well-rendered pipe above its own textual disavowal: “ceci n’est pas une pipe” – or, “this is not a pipe.” In the most obvious reading of the painting, Magritte is said to be pointing out the unbridgeable divide between representation and reality.
Contracts and (particularly) advertisements that use fine print operate on a similar level. The ad’s loudly stated, carefully worded attractions are representations of a proposed deal, the legitimacy of which the fine print discretely disavows. “This is not the deal,” the fine print says. On the subject of Magritte’s painting, Foucault speaks of an “operation cancelled as soon as performed,” a line that might as easily apply to advertising that offers deals too good to be true.
Foucault’s second reading of The Treachery of Images is a little subtler. He suggests that what the sentence “ceci n’est pas une pipe” actually refers to is itself: “this is not a pipe” is not a pipe. In recent years it has become common for fine print to include “unilateral amendment provisions” that entitle the company to change the terms of the deal at anytime as long as they give you written notice. In such cases, the fine print is also referring to itself when it whispers “this is not the deal.”
When people ask me why I’m critical of “notice and consent” in privacy law—well, this is why. The language in so many of these “contracts” is so one-sided, and so open to change over time, that trying to “control one’s data” is a mug’s game.