The New York Appellate Division has ruled that an email exchange between two parties can amend a contract—even if the agreement specifically states amendments “must be in writing signed by both parties” (Arthur Stevens v. Publicis USA). Here, an employment agreement was the subject of emails between the parties. The court ruled that emails containing the name of the sender in a signature block are a “signed writing” sufficient to amend the contract! Ouch! It is not hard to imagine any email communication with all the elements of a meeting of the minds (“gee, that sounds perfect”), an intent to be bound (“I agree”) and authenticated as attributable to the parties—would fit the argument. Have you looked at your contracts lately? Your outgoing email messages? Our own Peter Raymond and John Webb argued and won this case for our client Publicis USA and have authored a Rimon Bulletin. Our ATM team is working with them to counsel clients on how best to protect themselves in light of this decision.
John Hines in our Chicago office is one of the authors of “Anonymity, Immunity and Online Defamation: Managing Corporation Exposures,” published in the Sedona Conference Journal and cited by the 7th Circuit. Earlier this month, the 9th Circuit rendered a decision many think may erode immunity accorded to ISPs, websites and services with defamatory content posted on their sites (Fair Housing Council v. Roommates.com). But did you know that last week, the New Jersey Supreme Court rendered a significant decision recognizing a privacy interest in subscriber data which may impact corporations’ ability to pierce anonymity (State v. Reid). John has authored a Rimon Bulletin noting this extraordinary decision, departing from U.S. Constitutional standards and holding that the right to privacy extends to subscriber data in the possession of an ISP. The case involves a company that gave local police the IP address, registered to Comcast, of an employee on leave who visited a company supplier’s website, making unauthorized changes. After she was indicted, lawyers moved to suppress the evidence, arguing that without a valid subpoena, the employee’s expectation of privacy barred Comcast’s disclosure. New Jersey agreed, expressly extending its State “Constitutional” right of privacy to subscriber data provided to ISPs, noting “[u]sers make disclosures to ISPs for the limited goal of using that technology and not to promote the release of personal information to others.” Given the state of technology, the “IP addresses cannot be matched to an individual user without the help of an ISP,” and users have a reasonable expectation of privacy. Although the ruling is in the context of a criminal case, it will likely present challenges for corporations pursuing civil remedies and seeking to pierce the anonymity of individuals responsible for defamation and other speech torts. John and a team of Rimon lawyers know this area—reach out to him.
This article was contributed by Adam Snukal, Esq.
Surfed the web lately? Seen a banner promoting a product, service or trip to Ireland you priced yesterday? Serendipity? Luck? Cookies? Yes, it’s those tiny files placed on your computer when you visit a website. Advertisers can now parse through cookies on your computer when you visit certain websites and instantaneously serve up advertisements based on your historical online behavior—“behavioral marketing.” For some, this is a great convenience. For others, like New York State Assemblyman Richard Brodsky, this is invasive and should be stopped unless the consumer has given consent.
Assemblyman Brodsky sees the acquisition of Doubleclick by Google as a step backward for consumers since the combined company could tap into a reservoir of consumer behavior and search data on an individual basis. So he introduced a bill aimed at restricting Internet behavioral marketing—The Third Party Internet Advertising Consumers’ Bill of Rights Act of 2008—that would prohibit advertisers from collecting and using sensitive, personally identifiable information from users online; require websites to clearly and conspicuously disclose behavioral policies and practices; give consumers the right to opt-out of profiling practices; prevent their online behavior from being collected and used to deliver targeted advertisements; and police how advertisers are permitted to merge and synthesize such information with other data (e.g., merging personally identifiable information collected offline with information collected online). Opponents—some of the largest interactive advertising and media companies—have voiced their opposition in a letter to Assemblyman Brodsky, noting, “Time after time, state laws that have attempted to impose this sort of broad Internet regulation have been struck down by the courts, doing nothing more than making taxpayers bear the expense both of defending the lawsuit and paying the successful plaintiffs’ attorneys fees.”
Joseph I. Rosenbaum presented Marketing to Children in Virtual Worlds: At Play or As Prey? at the Virtual Worlds Conference in New York—you can download a copy from the FTP site. Joe also spoke about Mobile Mayhem: Marketing and Contextual Advertising versus Privacy, at the 40th International Advertising Association Conference in Washington, D.C.
Anyone notice the TYPO last month? Want a prize? Dig out last month’s issue (March 2008). The first five win. Ah, but now back to this month: did you know Charlie Chaplin once won third prize in a Charlie Chaplin look-alike contest? But again I digress. This month we are curious as to why so many children’s toy coin banks are in the shape of a pig. Know the answer? Send it to me.
Last month we asked you to identify the nation that is the oldest democracy on earth. This prompted a variety of answers, since nation, as many of you pointed out, could include the “Six Nations of the Iroquois” (Mohawks, Oneidas, Onondagas, Cayugas, Senecas, and Tuscaroras). It might also include the Republic of San Marino, founded in the 4th century A.D. by St. Marinus who fled to escape Christian persecution, or the world’s oldest democratic kingdom established in Kalinga in Northern India approximately 300 B.C.—alas no more. Of course one of our astute readers noted if “oldest” also meant continuous it would put the Isle of Man in the running—its Parliament has been continuously operating since 979 A.D. But after all is said and done (and more said than actually done), we award this month’s prize to Al Teich at the American Association for the Advancement of Science in Washington, D.C., who correctly noted that Iceland, whose parliament (the Althing) was formed by the Vikings in 930, is the oldest democracy still in operation, and who actually visited Thingvellir, the Icelandic site of the first democratically elected parliament.