Apple Corps Ltd v Apple
Judge: Mann J
Facts
In 1991 Apple Computer and Apple Corps (the Beatles record label) entered into an
agreement as to how they would use their respective trademarks. The agreement
reserved for the parties different fields of use for the apple logo they shared: Apple
Computer’s rights were restricted to computing (including software),
telecommunications and data processing and transmission and Apple Corps rights
were reserved to the music business and the Apple Corps catalogue, or, broadly
speaking, content. Apple launched the iPod in 2001 with iTunes playback software.
In 2003 Apple luanched the iTunes online store. Apple Corps claimed use of the
apple logo when connecting to iTunes and certain selling arrangements constituted
use in connection with content, in breach of the 1991 agreement.
Issue Whether Apple Computer exceeded the restrictions placed on the use of the
Apple mark by the 1991 agreement by launching iTunes, its own-brand MP3 online
download store and using the apple logo in connection with musical content.
Held Dismissing the claim: the relevant clauses of the 1991 agreement could, in
their drafting, be said to anticipate the convergence of the two fields of IT and music
content. The iTunes music store constituted a data transmission service in
conjunction with which Apple Computer used the apple logo. Although this service
delivered musical content, it was not a use that breached the 1991 agreement. The
use in relation to selling arrangements and advertising came closest to the limit of
Apple Computer’s field of use but remained in connection with data transmission
and so not did not breach the agreement. The limits of Apple Computer’s use would
be a fair and reasonable use when applied to the data service but would not extend
to originating content itself.
Comment
Tech-savvy Mann J proved to be something of an iJudge and was firmly of the view
that matters of construction favoured Apple Computer’s use of its logo on iTunes.
Consumers do not discern an association between retailers and purchased music
other than the sale itself — something that would be familiar to users of other
download sites as well as high street shops. Users of the online store would come to
it having noticed the logo denoting the origin of the ‘parent’ software. Apple Corps
plan to appeal.
Carlill v. Carbolic Smoke Ball Co.
Brief Fact Summary. The Plaintiff, believing Defendant’s advertisement that its
product would prevent influenza, bought a Carbolic Smoke Ball and used it as
directed from November 20, 1891 until January 17, 1892, when she caught the
flu. Plaintiff brought suit to recover the 100£, which the Court found her entitled to
recover. Defendant appealed.
Synopsis of Rule of Law. This case considers whether an advertising gimmick (i.e.
the promise to pay 100£ to anyone contracting influenza while using the Carbolic
Smoke Ball) can be considered an express contractual promise to pay.
Facts. The Defendant, the Carbolic Smoke Ball Company of London (Defendant),
placed an advertisement in several newspapers on November 13, 1891, stating that
its product, “The Carbolic Smoke Ball”, when used three times daily, for two weeks,
would prevent colds and influenza. The makers of the smoke ball additionally
offered a 100£ reward to anyone who caught influenza using their product,
guaranteeing this reward by stating in their advertisement that they had deposited
1000£ in the bank as a show of their sincerity. The Plaintiff, Lilli Carlill (Plaintiff),
bought a smoke ball and used it as directed. Several weeks after she began using the
smoke ball, Plaintiff caught the flu.
Issue. Lindley, L.J., on behalf of the Court of Appeals, notes that the main issue at
hand is whether the language in Defendant’s advertisement, regarding the 100£
reward was meant to be an express promise or, rather, a sales puff, which had no
meaning whatsoever.
Held. Defendant’s Appeal was dismissed, Plaintiff was entitled to recover100£.
The Court acknowledges that in the case of vague advertisements, language
regarding payment of a reward is generally a puff, which carries no
enforceability. In this case, however, Defendant noted the deposit of £100 in their
advertisement, as a show of their sincerity. Because Defendant did this, the Court
found their offer to reward to be a promise, backed by their own sincerity.
Concurrence. In the concurrences of Bowen L.J. and A.L. Smith, L.J., the notion
of contractual consideration also becomes an issue of relevance. Both of these
Judges note that while the Defendant could argue lack of consideration, Plaintiff, in
buying the Carbolic Smoke Ball and using it as directed, provided adequate
consideration through the inconvenience she experienced by using the product.
Discussion. This case stands for the proposition that while sales puffery in
advertisements is generally not intended to create a contract with potential product
buyers, in this case it did because the Defendant elevated their language to the level
of a promise, by relying on their own sincerity.
Thornton v Shoe Lane Parking Ltd
Facts Thornton parked his car in the Shoe Lane parking lot while he was at a musical
performance. He received a ticket from an automatic machine. On the ticket was
printed the time of issue, and a statement that the ticket is issued subject to the
conditions posted in the parking lot. These conditions were posted in the office
where you had to pay upon departure, and on the wall opposite the ticket machine,
however the poster was not very prominent. The conditions included exempting
Shoe Lane from any liability for injury caused to the customer while their car was
in the parking building. Thornton was seriously injured when placing goods in his
trunk before leaving by another car. At trial the judge found that Thornton was 50%
responsible for the act, but awarded him 50% damages from Shoe Lane, which they
appealed.
Issue Is the exempting condition, posted in the garage, part of the contract?
Does the fact that the ticket was dispensed automatically matter?
Decision Appeal dismissed.
Reasons Lord Denning states that this case differs from the preceding cases because
the ticket is issued automatically and not from a clerk. Therefore, there is no chance
to look at the conditions, reject them, and get your money back. Effectively the offer
is made by Shoe Lane in having the machine posted with the prices, and this offer is
accepted when the driver places money in the machine.
This contract cannot be subject to conditions that are presented after this time. The
writing on the ticket stating that it was subject to the conditions was not visible until
after the contract had been formed, therefore the contract is not truly subject to the
conditions. The ticket is simply a receipt showing that the contract had been formed.
Further, Shoe Lane did not do what was reasonably sufficient to give notice of the
conditions to Thornton – a driver would have to walk around the parking lot to
discover them, which is more than can be asked of a sensible patron.
Megaw agrees, but focuses exclusively on the fact that the defendant did not give
reasonable notice rather than the formation of the contract prior to the conditions
being delivered. Willmer states that in cases involving an automatic ticket machine
there is something distinctly irrevocable about the offer made by the company
owning the parking lot.
Ratio In cases with automatic ticket dispensers, the contract is formed when the
plaintiff inserts money into the machine and receives the ticket; conditions that are
not seen until after this time are not binding as the contract has already been agreed
upon without the conditions.
L'Estrange v F Graucob Ltd
L’Estrange v F Graucop Ltd [1934] 2 KB 394 is an English Contract Law case
concerning the exclusion clauses.
Facts:
The plaintiff, Miss Harriet Mary L’Estrange, purchased an automatic cigarette
machine from the defendants, F Graucop Ltd. The parties agreed that the plaintiff
would pay in installments.
During the meeting Miss L’Estrange signed the brown form of ‘Sales Agreement’
the bottom of which read the following:’…This agreement contains all the terms and
conditions under which I agree to purchase the machine specified above, and any
express or implied condition, statement, or warranty, statutory or otherwise not
stated herein is hereby excluded. …. (sgd.) H. M. L’Estrange.’
The plaintiff had not read the document, believing it was an ordinary order form.A
day after the machine delivery, the machine got jammed and stopped working.
Consequently, Miss L’Estrange stopped paying the monthly installments. She
claimed the sum of already paid installments on the grounds that it was not fit for
purpose.
Issues: Firstly, was the clause part of the contract despite the fact that the plaintiff
had not read it?
Secondly, did the agreement that she signed exclude warranties for fitness?
Held:
The Court of Appeal allowed the Since the F Graucop Ltd’s appeal. Since the
plaintiff had signed the written document and had not been induced to do so by any
misrepresentation, she was bound by its terms.
It was wholly immaterial that she had not read the document and was not aware of
its content. The signature had successfully incorporated the exclusion clause into the
contract.
Adams v Lindsell [1818] EWHC KB J59
Adams v Lindsell [1818] EWHC KB J59 is a Contract Law case which established
postal rule.
Facts
Adams wrote to Lindsell offering to sell him 800 tods of wool. Adams asked for a
response within two weeks. A few days later, Lindsell wrote back agreeing to the
offer. However, the letter was misdirected. As a result, it arrived two days after the
deadline. In the meantime, Adams had already sold the wool to a third-party.
Lindsell sued Adams for breach of contract.
Issue(s)
When did Lindsell’s posted acceptance of the offer become valid?
Decision
The Court held in favour of Lindsell. The acceptance became valid from the moment
the letter was posted. There was therefore a contract between Adams and Lindsell.
This Case is Authority For…
A posted acceptance is validly communicated to the offeror as soon as it is posted,
even if it arrives late. This is now known as the ‘postal rule’.
Other
The Court argued that the postal rule was necessary to enable distance commerce at
the time, since it would be impossible to negotiate a contract by post otherwise. If
the acceptance was not immediately valid, the accepting party could not rely on the
contract until they had received confirmation from the offeror, and the chain of
letters could continue indefinitely.
Parker v South Eastern Railway
Facts Parker paid to leave his bag in the cloakroom of South Eastern Railway (SER).
There was a notice within the cloakroom stating that SER would not be responsible
for any deposits exceeding £10. in value. The tickets given to customers on making
their deposit had the same notice printed on them in legible writing. Parker’s bag
exceeded 10l. in value and it was lost or stolen. Parker successfully claimed against
SER for his lost bag and SER appealed.
Issues Parker argued he had not seen the notice in the cloak room and had not read
the terms on the ticket, but had simply placed it into his pocket believing it to be a
mere receipt for his deposited goods. As such, SER should not be able to rely on the
exclusion clause because it would be unreasonable to expect customers to know that
a receipt for deposited goods contains special conditions. SER claimed it was
irrelevant whether Parker had read the notice or the ticket, because a party could still
be bound by a contract irrespective of whether he had read its terms. They argued
they had taken sufficient steps to bring the terms to customers’ attention.
Decision/Outcome A re-trial was ordered. The judge’s direction at first instance
that Parker was not bound by terms he had failed to read was incorrect. Parker would
not be bound by terms he did not know were printed on the ticket, but where he knew
there were terms on the ticket, or that there was writing on the ticket, he would be
bound providing the jury were satisfied he had been given sufficient notice.
Pinnel’s Case
Facts: The defendant, Cole, owed the plaintiff, Pinnel, the sum of £8 10s. Pinnel
sued Cole for recovery of the debt. Cole had, at Pinnel’s request, paid £5 2s 6d one
month before the debt was due to be paid and stated that they had an agreement
that this part payment would discharge the entire debt.
Issues: The defendant argued that the plaintiff had accepted partial payment of the
debt as satisfaction of the whole. However, it was a general rule that payment of a
lesser sum than that which was owed in satisfaction of a debt could not discharge
the obligation to repay the whole amount.
Decision/Outcome: Lord Coke confirmed the general rule that part payment of a
debt cannot be satisfaction for the whole. However, since the payment had been
made early this was sufficient to discharge he debt.
Therefore, by paying some money early the defendant had provided the plaintiff with
a further benefit and had not just repaid the money which he already owed.
Consequently, this was good consideration, and the court found for the defendant.
Harvela Investments v Royal Trust Co of Canada [1986] AC
Facts
The first defendant held shares in company. By means of a telex communication
they invited the claimant and the second defendant to make an offer to purchase
shares by sealed tender. They stated in this invitation that they bound themselves to
accept the highest offer. The claimant made a bid for a fixed sum; the second
defendant made a bid for a fixed sum or alternatively for ‘$101,000 in excess of any
other offer’, whichever was to be higher. The first defendant accepted the bid made
by the second defendant, despite the fact that the fixed sum which they offered was
lower than that offered by the claimant.
Issue
The issue was whether the second defendant’s referential bid was invalid, and by
extension whether the first defendant was bound to accept the claimant’s offer as the
highest valid bid.
Decision/Outcome
The House of Lords held that the referential bid was invalid, and as such, the first
defendant was bound to accept the claimant’s offer. It reasoned that to allow a
referential bid would create the possibility of conflicting obligations for the first
defendant (had both parties made a bid offering a certain sum in excess of any other
offer), in which case the offeror would be bound by the terms of its own promise to
accept both offers. This would therefore be an unreasonable construction of the
invitation to tender. It would also undermine the purpose of a sealed tender, which
is to prevent a bid being made based on the sum offered by the competitor.
Fisher v Bell [1961] QB 394
Facts:The defendant shopkeeper displayed in his shop window a flick knife
accompanied by a price ticket displayed just behind it. He was charged with
offering for sale a flick knife, contrary to s. 1 (1) of the Restriction of Offensive
Weapons Act 1959.
Issue : The issue was whether the display of the knife constituted an offer for sale
(in which case the defendant was guilty) or an invitation to treat (in which case he
was not).
Decision / Outcome: The court held that in accordance with the general principles
of contract law, the display of the knife was not an offer of sale but merely an
invitation to treat, and as such the defendant had not offered the knife for sale
within the meaning of s1(1) of the Act. Although it was acknowledged that in
ordinary language a layman might consider the knife to be offered for sale, in legal
terms its position in the window was inviting customers to offer to buy it. The
statute must be construed in accordance with the legal meaning, as
“…any statute must be looked at in light of the general law of the country, for
Parliament must be taken to know the general law” (per Lord Parker C.J. at para.
4).
It is well established in contract law that the display of an item in a shop window is
an invitation to potential customers to treat. The defendant was therefore not guilty
of the offence with which he had been charged.
Pharmaceutical Society of Great Britain v Boots Cash Chemists
Relevant to: Formation of Contract
Facts in PSGB v Boots
The defendant ran a self-service shop in which non-prescription drugs and
medicines, many of which were listed in the Poisons List provided in the Pharmacy
and Poisons Act 1933, were sold. These items were displayed in open shelves from
which they could be selected by the customer, placed in a shopping basket, and taken
to the till where they would be paid for. The till was operated by a registered
pharmacist. However, the claimant brought proceedings against the defendant for
breach of section 18(1) of the Pharmacy and Poisons Act 1933, which requires the
supervision of a registered pharmacist for the sale of any item in the Poisons List.
Issue in PSGB v Boots
The question was whether the contract of sale was concluded when the customer
selected the product from the shelves (in which case the defendant was in breach of
the Act due to the lack of supervision at this point) or when the items were paid for
(in which case there was no breach due to the presence of the pharmacist at the till).
Held in PSGB v Boots
The Court of Appeal held that the defendant was not in breach of the Act, as the
contract was completed on payment under the supervision of the pharmacist. The
display of the goods on the shelves were not an offer which was accepted when the
customer selected the item; rather, the proper construction was that the customer
made an offer to the cashier upon arriving at the till, which was accepted when
payment was taken. This analysis was supported by the fact that the customer would
have been free to return any of the items to the shelves before a payment had been
made.
Entores v Miles Far East Corp
Facts
The complainants, Entores, were a company that was based in London. They had
sent an offer to purchase 100 tons of copper cathodes to the defendants, Miles Far
East Corp. Their company was based in Amsterdam and this offer was
communicated by Telex, a form of instantaneous communication. The Dutch
company sent an acceptance of this offer by Telex to the complainants. When the
contract was not fulfilled, the complainants tried to sue the defendants for damages.
Issues
In order to decide whether the action for damages should arise in English or Dutch
law, the court had to decide the moment of acceptance of the contract. If it was when
the contract acceptance was sent, damages would be dealt with under Dutch law. If
acceptance was when it was received, then it would be under English law.
Decision/Outcome
The court held that the contract and damages were to be decided by English law. It
was stated that the postal rule did not apply for instantaneous communications. Since
Telex was a form of instant messaging, the normal postal rule of acceptance would
not apply and instead, acceptance would be when the message by Telex was
received. Thus, the contract was created in London. This general principle on
acceptance was held to apply to all forms of instantaneous communication methods.
Acceptance via these forms of communication had to be clear before any contract is
created.
Brinkibon Ltd v Stahag Stahl [1983] 2 AC 34
Facts
The complainants, Brinkibon Ltd, were a company that was based in London. They
were buying steel from the defendants, Stahag Stahl, who were sellers based in
Austria. The complainants sent their acceptance of the offer by Telex, which was to
the defendants in Vienna. Brinkibon Ltd later wanted to sue Stahag Stahl for breach
of contract and applied to serve an out of jurisdiction party.
Issues
The issue in this case concerned where the contract was formed, as the breach of
contract could only be dealt with under English law if the contract was formed in
England. Otherwise, as the defendant’s argued, the contract would be dealt with by
Austrian law. The court had held that the contract was created in Austria and this
decision was appealed. Another issue in the appeal was when the formation of a
contract would be when using instantaneous communication, such as Telex.
Decision / Outcome
The appeal was dismissed and the courts held that the contract was formed in
Austria and the breach of contract would have to go through Austrian courts. As
the communication of acceptance was received by Telex in Vienna, this was when
the contract was created. The court reaffirmed Entores v Miles Far East Co, which
stated that the postal rule did not apply to instantaneous forms of communication,
which would include Telex. However, the court also stated that there was no
universal rule and each case would have to be resolved by looking at the intention
of the parties and sound business practice.
Formalities
Since contract formation on the internet does not involve paper or anything
reassembling it, there may be some come concern about whether such contracts are
in writing.
Tesco’s terms:
At all times our acceptance of an order takes place on dispatch of the order, at which
point the purchase contract will be made and you will be charged for it
It clear that when the order is submitted by a customer it becomes contractually
binding on the parties at the point of dispatch.
BROWSE-WRAP AGREEMENTS: In these forms of agreements, there is a
hyperlink at the bottom of the website in which the various terms and conditions of
using website or any downloadable app is provided. The moment we click
(www……….) or the moment we click the download button, it is automatically
meant that we are bound by the terms and conditions of the application. This usually
happens with all of us when we download any application from play store by clicking
download button.
CLICK-WRAP AGREEMENTS: These contracts came as a consequence of
browse-wrap agreements. Whenever we install and open any social media app like
Facebook, Instagram, Netflix, Whatsapp and Twitter every time we have to click ‘I
Agree’ button displayed on the screen to open the app, certain terms and conditions
were written in that ‘I Agree’ button either we could agree with it or we could deny
it.
SHRINK-WRAP AGREEMENTS: These are software agreements. In such
agreements there is a box and the moment we open the box it is meant that we are
bound by the terms and conditions of the contract. The validity of Shrink-Wrap
agreements is questionable. In the landmark case of Pro CD v. Mathew Zeidenberg,
Mathew purchased a CD-ROM which is a compilation of a telephone directory. On
the outside surface of the packet, a notice was written which restricted the use of
database for non-commercial purpose.[8] Mathew sold that CD-ROM for the
commercial purpose. The court held that he was not liable because information about
terms and conditions are inside the box and hence the validity of the shrink-wrap
agreements is questionable.
Spurling v Bradshaw [1956] 1
Validity of contractual clause purporting to exclude liability for negligence of
bailees
Facts
Bradshaw sent eight barrels of orange juice to be stored at Spurling’s warehouse.
Spurling sent a receipt to Bradshaw on which were printed their conditions of
storage. The conditions contained a clause purporting to exclude liability for any
losses resulting from their negligence. Bradshaw fell into arrears with his storage
payments and Spurling brought an action to recover the monies due. The orange
juice was spoiled and unusable, and Bradshaw counterclaimed in negligence.
Issues
Bradshaw alleged Spurling were negligent, and in breach of an implied term to take
reasonable care of the barrels because they had left them in the open air and the
orange juice had spoiled. He further contended he had not been given sufficient
notice of the exemption clause and, therefore, Spurling should not be able to rely on
it. Spurling denied negligence and argued they could rely on the exemption clause
even if they had been negligent. The clause had been brought to the attention of
Bradshaw and was clear and unambiguous in its meaning.
Decision/Outcome
Although it had not been proven that Spurling had been negligent, even if they had
been negligent, they would be able to rely on the exclusion clause to avoid liability.
Sufficient notice of the clause had been given so as to make it a term of the contract.
Exemption clauses will operate to protect a party only where he is carrying out his
contract and not where he is deviating from it in a fundamental respect.
Activity online may attract liability
For example:
 a criminal fraud conducted via email
 an employee dismissing some or all of its employees
 a Facebook post encouraging readers to participate in a riot
wider context than the information that is communicated online
1. fraud requires fraudulent intent and at least one intended victim
2. unfair dismissal requires an employment relationship and unfairness
3. the person making the inflammatory post intends to harm at least some of his
readers is commit a serious offence
liability arises from the content per se
Criminal
 indecent images of children
 sending offensive material by means of a public communications network
 publishing information about a police constable of a kind likely to be useful to a
person committing a terrorist offence
Civil
 defamation
 copyright
 trademark infringement
liability for the mere presence of of content
 Difficulty:
1. someone who did not create
2. may not have been aware of the content
3. may be liable for its distribution on the internet
 unless there were some specific defence to that liability.
Online intermediaries
-infrastructure
-increasing number of different forms of intermediaries
-Some particularly important examples include:
-classic internet service providers (ISPs)
-cloud computing services
-user-generated content sites - Blogger, tumblr, Twitter, YouTube, Flickr or
Facebook
-search engines
-C2C platforms
-payment providers
two distinct problems for intermediaries
First, they process content or support activities, over which they have little or no
control
Secondly, the content they make available may appear in jurisdictions with more
hostile legal
Example forms of liability
Defamation
 Defamation is a wrong involving the publication
 “publication” is a technical term - “communication”.
 no requirement for communication to a large number of people.
 single email from one person to another can constitute a publication
 the Defamation Act 1996 uses the word “publisher” with a narrower meaning.
 Scots law - a single delict of defamation
English law libel:
1. Had a historical origin - the state could prevent scurrilous printed material
2. libel is one of a very small number of causes of action - no need to prove
damage of any kind.
Slander had a different background
For a valid claim for slander, actual damage would have to be proved
exceptions
 There are some to this for particularly serious slanders
 In UK law, there is a presumption that there has been damage to a person’s
reputation
 English courts have treated online defamation as a form of libel
 defamatory statement made in a chat room or on Twitter
Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75
Facts:
In Jameel v Dow Jones & Co Inc [2005], an article was posted in the online version
of the appellant’s journal. It listed the nationals who had allegedly financed Osama
Bin Laden and Al Qaeda. There was a hyperlink that enabed readers to find the list
of donors who financed Al Qaeda. The claimant, Mr Jameel, was amongst them.
Mr Jameel brought an action against the appellant. He argued that the article
contained defamatory meanings that he was a financial supporter of Osama Bin
Laden and Al Qaeda. The claimant’s objective was not to recover damages but to
achieve vindication and have his name removed from the article.
The judge at first instance ruled in favour of Mr Jameel and dismissed the appellant’s
arguments.
The appellant publisher appealed, arguing that there was no actual damage since the
publication was minimal and it had done no significant damage to Mr Jameel’s
reputation.
Issues:
Whether a substantial tort was committed; whether Mr Jameel’s action was an abuse
of process.
Held:
The Court of Appeal allowed the appeal and have the following judgment. It found
that where an action concerns no or minimal actual damage to a person’s reputation,
such action might constitute an unnecessary interference with freedom of
expression. The Court then went on to assess the presumption of damage with the
European Convention on Human Rights which came into force in England with the
Human Rights Act in 2000. It concluded that the presumption under English Law
that a defamatory article caused some damage to its victim was incompatible with
Article 10 (freedom of expression) of the European Convention on Human Rights.
Abuse of process
As regards the abuse of process, the Court of Appeal considered that the publication
that took place in England did not amount to a real and substantial tort, as it brought
no substantial damage to reputation. So, it would be an abuse of process to continue
to commit the resources of the court to an action where so little was now at stake.
Also, there was no risk that the appellant publisher would repeat the article in the
form in which it was originally published. Thus, having regard to the circumstances
of the present case, the Court concluded that if the action proceeded and resulted in
a judgment in favour of Mr Jameel, it was unlikely that the court would be able to
impose any valuable injunction against the appellant publisher.
Bunt v Tilley & Others
Facts: The Claimant sued three individuals for libel and harassment over allegedly
defamatory postings made on Internet chatrooms. He also sued the Internet Service
Provider of each individual, namely AOL, Tiscali and BT, on the basis that having
each provided their respective customer with a connection to the Internet they too
were responsible for the postings complained of. The ISP Defendants applied to have
the claim struck out and/or for summary judgment on it.
Issue: (1) Whether the ISP Defendants were publishers at common law.
(2) The protection afforded by the Electronic Commerce (EC Directive)
Regulations 2002 and the Defamation Act section 1 to ISPs when providing
internet access services.
(3) Whether the claim was an abuse of the court’s process.
Held: Dismissing the claims:
(1) it would be wrong to attribute liability at common law to a telephone company
or other passive medium of communication, such as an ISP: the position of an ISP
is not analogous to that of a distributor of defamatory material;
(2) further, the ISPs were “information society service” providers within the
definition of the Electronic Commerce Regulations. As such, they would have
available to them the “mere conduit”, “caching” and “hosting” defences of
Regulations 17, 18 and 19, where they were without knowledge of their customers’
postings. Similarly, section 1 of the Defamation Act 1996 would afford an ISP a
complete defence in relation to any claim brought over postings of which it had not
been put on notice;
(3) this was also a case (as brought against the ISPs) which engaged the public policy
considerations concerning abuse of process highlighted by Jameel v Dow Jones
Byrne v Deane [1937] 1 KB 818 is a Tort law case focusing on Libel
Defamation.
Facts:
The claimant – golf club member
The Defendants – the proprietors and the secretary of the club.
It was a rule that members could not put any notices or posters without the
secretary’s consent in the club premises. They had gambling machines in the club
for exclusive members only. Police removed the machines after they got notified
about it. After that, an anonymous poem was pinned to the wall implying that the
mystery informant was the claimant. The claimant brought an action in Libel as those
words were implying that the claimant was disloyal to the other club members
Issues:
The trial judge stated that the claim was fair and justice and saying that the words
were defamatory. The defendants appealed.
Held:
It held that the words of the verse in Byrne v Deane [1937] 1 KB 818 could not be
defamatory. Moreover, Slesser LJ argued that there was no evidence that any of the
defendants had anything to do with the verse’s publication. Greere LJ said that the
verse was defamatory. Concluded that by leaving the verse on the wall, the
defendants engaged in the commission of libel.
The Defamation Act 1996
The section 1 defence requires that the defendant:
 took reasonable care in relation to its publication
 did not know, and had no reason to believe, that what the defendant did, caused
or contributed to the publication of a defamatory statement.
Tamiz v Google
Court of Appeal of England and Wales accepted that google was not a section 1
publisher
google could take advantage of the section 1 defence
court further held that, having been notified of the defamatory material, it “knew or
had reason to believe” that what it did “caused or contributed to the publication of a
defamatory statement”.
defence failed.
In the event, Google succeeded - the claim could be struck out on Jameel principles
The Defamation Act 2013
The Defamation Act 2013 and online intermediaries:
 Section 5 - statements that were not posted by the operator to the site
 complicated provision depending on procedural regulations, described as a “red
herring”
 operator’s defence may be defeated if the poster of the material is not identifiable
and the operator fails to comply with procedures intended to allow a potential
claimant to discover the poster’s identity.
 Section 10 will also be of interest to intermediaries
 It applies where someone is not the “author”, “editor” or “publisher
 It will only be possible to sue such a person if the claimant shows that it would
not be reasonably practicable to sue the author editor or publisher
 such a site since it will force potential claimants to make some effort to sue the
user-contributor rather than the site.
Archives and publication
 the “single publication rule”
 odd case of Duke of Brunswick v Harmer (1849) 14 QB 185.
 The Duke of Brunswick - drummed out of Brunswick
 a newspaper article about him in the archives of the British Museum
 limitation period since the article had been first published by the newspaper had
long run out
 successfully sued for libel on the basis that there had been a fresh publication
 lots of criticism over the years
 Newspapers that keep online archives
 liability could last forever.
 Duke of Brunswick case is that the Duke himself organised the publication to one
of his servants.
 unfair to allow someone to engineer an actionable wrong against themselves for
which they can then be compensated
 Today the Duke of Brunswick's claim would almost certainly be struck out as an
abuse of process because it fails to show a substantial tort on Jameel principles.
 It turns out that the multiple publication rule probably does not threaten
newspaper archives
Hyperlinking
 Hird v Wood - the defendant sat on a stool near a placard which had been put up
on the roadway containing defamatory matter. He remained there for a long time
smoking a pipe and continually pointing at the placard with his finger and thereby
attracting to it the attention of all who passed by.
 Smith v Wood - the defendant had a copy of a libelous caricature print. A witness
heard that the defendant had a copy, went to visit him and asked to see it. The
defendant produced it for him and pointed out the figure of the plaintiff.
 Lawrence v Newberry - letter published in a newspaper referred its readers to a
speech in the House of Lords which was alleged to contain defamatory matter.
 hard to reconcile these decisions with any general principle.
Defamation law has always recognised that context is important
 Telnikoff v Matusevitch (1992), the House of Lords held that only the
defendant’s letter to the Times could be considered, even though it was made in
response to an earlier letter which provided context that might have assisted the
defendant.
main purposes of signatures
to identify a person
personal involvement of the singer
person and the content of a document.
Cryptographers
cross-purposes about signatures.
focus on the evidential nature
value of a signature
Authentication
electronic signatures
Lawyers
formal role
Forensic arguments
evidential value of a signature
Public-key encryption (PKE)
Public-key encryption for digital signatures:
The signer has two “keys”
public key
private key
DRAWBACKS OF PKEs
FIRST DIFFICULTY
fundamental problem of “key distribution”.
individuals who know each other
The HTTPS protocol
Do users trust the browser?
second difficulty
digital signatures for an e-commerce
digital signatures solve an evidential problem as to identity
do not really help with formal validity.
Attempts to regulate
Utah Digital Signature Act
technology-specific
Some European countries adopted similar technology specific approaches
advantages with state regulation of certification providers
Technology specific laws
UNCITRAL Model Law on Electronic Commerce
technologically neutral “functional equivalence” test
Article 7 (uncitral model law on electronic commerce with guide to enactment 1996)
identify the person
approval of the information contained in a data message
quacks (counterfeits) like a signature - should be accepted as a signature
Functional equivalence laws - adopted in some states such as the UK, Australia and
New Zealand and in the United States
making obsolete the Utah law
The Electronic Signatures Directive takes a two-tier approach two types of
signatures:
advanced electronic signature - fairly neutral as to the technology used
directive principally concerned with advanced electronic signatures
qualified certificate
secure-signature-creation device
Liability of certification providers
A system of electronic signatures raises two questions of liability
liability on certification providers
liability on the users of electronic signatures