18 January 2010

Cyberspace February 2010


I recently advised on the formation of contracts via web sites, noting that it is clear in NSW that it can be done. In Smythe v Thomas [2007] NSWSC 844 the court made it clear that a contract for the sale of goods was entered into by the parties via eBay. However, recently a Missouri woman claimed in Major v McCallister and ServiceMagic (Missouri Court of Appeals SD29871) that she could not be bound by a website's terms and conditions because the site had not forced her to look at a page containing the conditions. Instead, there was a link next to the "submit" button which took the user, if they clicked on it, to the terms of use. The court said it should "still apply traditional principles of contract law and focus on whether the plaintiff had reasonable notice of and manifested assent to the online agreement." It also noted that the courts routinely enforce clickwraps.

However this case was about a 'browsewrap' where one need not click to accept the website terms - use of the site itself constitutes acceptance of its terms of service. Earlier cases had not enforced such agreements where it was not immediately noticeable, but in this case there was "immediately visible notice of the existence of license terms." The court held that the terms applied. The moral? You might draft great terms, but you also need to test your clients' sites to make sure they are visible (eg: without scrolling, or hidden behind other buttons or links).


Sites such as MySpace, FaceBook and LinkedIn allow users to post information about themselves with a view to networking with people they know or meeting new contacts. Once you 'connect' or 'friend' a person you can easily share photos or text either individually or with all your friends. So should a person exercising judicial office have "friends" in the profession? The Florida Judicial Ethics Advisory Committee doesn't think so. The question 'Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."' was answered "no". On the other hand, the South Carolina Judicial Department reached the conclusion that "A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate."


The Seventh Circuit of the US District Court has decided to tackle the "reform of the civil justice pretrial discovery process... to try to take action to reduce the rising burden and cost of discovery... brought on primarily by the use of electronically stored information". It produced a set of principles to assist parties to focus on "indentifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce." The principles include: cooperation by the parties; proportionality of discovery; targeted, clear and specific requests for preservation; early conferences by the parties to identify scope, potential for reducing costs and burden, and formats for production; use of 'e-discovery liaisons' who may be lawyers or laymen and will attend conferences and hearing; and, agreed keywords and filters of electronic data.

These principles, if enforced by the court, are likely to go some way to reduction of costs in many matters. In particular, the concepts of proportionality and targeted requests are likely to bear fruit. However, many lawyers may not voluntarily respond, and it will be up to the courts to make it happen.

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