Slashdot Mirror
Britain's 400 Years of Cyber Law
corbettw writes "There's a news piece in The Register this morning about a British high court ruling about email signatures, and whether they constitute binding contracts. Apparently, the 1677 Statute of Frauds dictates what constitutes a contract, so an email with a disclaimer in the sig could qualify under the language of the statute. Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally. Maybe there's some truth to the Internet joke 'take off every sig for great justice!'"
Editors, RTFA. This is not about email signatures in the sense of the things people like to put after the "-- " at the end of their emails to add a personal touch; it's about regular signatures (signing your name), and it's about the fact that the LACK of a name or signature in an email means that an email CANNOT be a valid "written offer".
The only thing this means is that if you include your name in your signature (the email signature again, i.e., the part after the "-- "), whatever you wrote in your email can be treated the same way as something you wrote in a regular letter that you signed with your name.
But that's neither surprising nor worrying - quite the opposite. The implicit statement in the story summary that the disclaimers some companies like to put into emails could somehow constitute a valid contract is a big, fat piece of Slash-FUD.
Speaking of which, I propose the term "Slash-FUD" for intentional FUD in and intentionally misleading summaries and headlines of Slashdot stories - the problem seems to have grown so large in recent years that I think it deserves a special name. Death to Slash-FUD! Let that be our battle cry.
quidquid latine dictum sit altum videtur.
You now owe me 10% of my current debt (negative savings). I accept hard currency in mayonaise jars or under mattresses.
Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.
How could a clever lawyer argue that, exactly? Didn't we have a big war a couple hundred years ago so that English laws would no longer apply in America?
The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P
True enough. But ...
In the British legal system a contract is formed when the following are all true:
1. There is an offer
2. There is consideration of the offer - i.e. Goods or Services exchanged for money or other services.
3. There is acceptance of the offer
Wow. What an amazing coincidence! It's exactly the same in the American legal system!
That's not really shocking and I am, of course, being humorous. The fact is that the a major component of the American legal system (common law) is very much based on the British Common Law. While Americans are not subject to British law due to a little scuffle we had that started about, say, 230 years ago or so this July 4, British Common Law has been used to establish legal precedence in cases involving American common law.
So, a law that appers in 17th century British Common Law doesn't apply to American Common Law -- but it may if an American judge so rules based on this precedence.
My blog
Except for the fact that we don't use tribal customs as the basis for our legal system; British Common Law, however, is a different matter.
Seems to me The Reg has drawn exactly the opposite conclusions the judge's decision supports.
The judge ruled that the name in the header did not constitute the name required for a binding contract, because it was put their automatically as a matter of course.
I think that similarly, a crappy e-mail signature disclaimer would be ruled completely invalid and not contractually binding, precisely because it is placed there as a matter of course, even when completely inappropriate.
GCHQ Quantum Insert installed. If only our tongues were made of glass, how much more careful we would be when we speak
That is exactly what the constitution authors wanted. The consitution was written in English, using the English legal tradition and standard English meanings. When they wrote the word "judge" the meant a judge as understood in the british system. When they wrote the word trial, they meant a trial as understood in the british system.
In other words, every unstated assumption is to be resolved using the customs, practices and semantics of the day, which were, lo-and-behold the British customs. Particularly those rights that are not explicitly stated, but not to be construed as non-existent, as per the first amendment.
And in many cases, you did. Well done and all that!
Here's the fun part though: You didn't replace every single law. Many of the British ones were perfectly servicable, and were simply taken as granted in the new system (which was obviously based heavily on the British one), and remained in force. If there is no new American law explicitly superceding this one, then by tradition it does indeed still apply in the US - and tradition (or precedent, if you will) is a big thing in legal circles.
Check out one of the many, many links to relevant wikipedia articles in this topic before engaging in a round of "rofl, but we pwned those british good!" back-slapping.
If the court interprets what is known as an "email signature" as a "signature", the court is deeply confused about how signatures are added. An email signature is more like pre-printed stationery.
...the question is whether he can do so successfully. That is, whether the judge will rule in his favor.
I don't think "common law" means at all the same thing as an explicit statute, where Congress has set down in writing what the rule is. In those cases, the court is bound to enforce the law as written, regardless of whether or not it's the way things are usually done. Statute can break entirely new ground, make things illegal which were legal before (e.g. cocaine) or legal which were illegal before (e.g. abortion).
Not so with common law. I believe "common law" just translates to "what we've always mostly done." It's just a short way to imply that what people have almost always done, on their own, spontaneously, in response to a given situation should, after a long enough time, acquire much the force of written law. Especially when "what the people have done" has been ratified by repeated and consistent judicial decisions that agree with the tradition.
It's a way to recognize that all law derives ultimately from the will of the people, and in certain situations people have expressed that will directly, without the need for legislaturely lawyers to write it down on parchment in curly script. Hence, the idea of "common law" is a constraint on the judiciary, telling them that, in the absence of explicit written law, they can't just decide cases before them on the basis of their personal whim. They can't just say: well, there's no written law here, so I'll rule as I see fit. Instead, they are obliged to recognize as law that "law" which is merely implied in long social traditions and the body of prior related judicial decisions.
So from this POV could a lawyer successfully argue that English common law supercedes the Constitution? Of course not. Written statute always trumps unwritten common law. Common law is only used when there is no written law to provide guidance.
Could a lawyer successfully argue that English common law supercedes post-1776 American common law? Not any more than he could argue that the speed limit on highways should still be 55 MPH because the 1970s era 55-MPH laws predate the later laws allowing the speed limit to be higher. The later law always controls, even when it's common law.
So what's left? Only that a lawyer could successfully argue that in the absence of any relevant written statute, and the absence of any unique post-1776 American tradition, the court should consider the traditions in England prior to the Revolution. That doesn't sound very scary, or unreasonable.