Britain's 400 Years of Cyber Law 225
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!'"
Confusion again (Score:5, Insightful)
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.
Re:yay! (Score:3, Insightful)
Really? (Score:2, Insightful)
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?
Re:Wrong, let me clarify. (Score:3, Insightful)
Re:Confusion again (Score:5, Insightful)
Exactly. It seems Zonk either didn't actually read the article before approving it, or read it but didn't understand one word of it.
Pretend for a second that this comment was an email, that I was making an offer of some sort, and Bogtha was my real name. The fact that 'by Bogtha' above my comment does not mean that I've "signed" the "contract". The fact that 'Bogtha' appears at the bottom, as part of the comment and not part of the meta-data, means that I've "signed" the "contract".
In essence, a British law defines the rules by which you can consider a document to be signed. A judge looked at a case involving an email, and decided that according to that law, a From header doesn't count, but a name at the bottom does.
It's really not that interesting and bears little resemblance to what is described in the summary. You can read the original law here [tiersma.com].
Re:wth? (Score:1, Insightful)
Conclusions are backwards (Score:3, Insightful)
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.
Re:I am not a lawyer... (Score:5, Insightful)
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.
Re:A clever lawyer eh? (Score:3, Insightful)
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.
that's ridiculous (Score:3, Insightful)
a clever lawyer can *argue* anything... (Score:3, Insightful)
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.