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With injunctions being served by Facebook, and the first “Twibel” case in the UK (libel duty comments made by Twitter) being won, a recent case regarding contracts made by email highlights how the law is attempting to keep pace with our ever changing forms of media.

Golden Ocean case

The case of Golden Ocean came to the Court of Appeal earlier this year. Golden Ocean claimed that a charterer had failed to honour its obligations to take delivery of the vessel under a guarantee worth in excess of $50 million. The defendants claimed there was no contract or guarantee in existence despite oral communication and an extensive chain of emails. Relying on section 4 of the Statute of Frauds 1677 (which requires that certain types of contracts must be recorded in writing with sufficient detail in order to be legally binding), the defendants argued that the guarantee was incomplete as it was contained over a number of emails which could not be patched together sufficiently, the names could not constitute signatures and that the final email referred to a formal contract being produced which never materialised. The Court of Appeal, however, agreed with the claimants and the High Court, confirming that the string of negotiated emails promptly signed, albeit even if informally, such as by first name, initials or nickname, would constitute an enforceable guarantee. The key was that the parties intended to be bound by the arrangement irrespective of the fact that the formal document which was expected to be drafted was never actually produced. This judgment is, perhaps, not all that controversial, as it has long been established that contracts can be formed over email and through other means of instantaneous communication. However, what is clear from Golden Ocean is that if parties show intent to be legally bound to one another, they will be. Stating “Subject to Contract” on the top of all communications and draft documentation can be a useful way of clearly indicating that you do not want the content to be legally binding.

Looking ahead

t is increasingly clear that the law needs to adapt to keep up with the ever moving world of media and social networking. It is expected that the Parliamentary Joint Committee on Privacy Injunctions will recommend that social networks, such as Facebook and Twitter, be subject to injunctions and in doing so force sights to remove libelous comments. The same Committee may also request that Google censors search results in order to block such material from being accessed. The ways in which businesses choose to communicate with each other are changing and as they do we need to look to see how the law applies to new forms of media. What Golden Ocean shows us is that laws that are centuries old can be applied to the media reality of today. Whilst the method may be different, the same rules can still apply – statements made through new media will be taken as seriously as those made by traditional forms.

Some advice

In conclusion here are three top tips to bear in mind when you are negotiating a legal arrangement:

1. Complete a formal agreement: if you do wish to formally document an arrangement then you should take it upon yourself to draft (or indeed have a suitably qualified lawyer draft) the appropriate agreement and not start trading with a counter-party until such agreement is finalised.
2. “Subject to Contract”: clearly write the term “subject to contract” on the top of all communications and draft documentation which you do not wish to be binding.
3. Don’t be fooled by modern media: do not be naive and think that by using email, Twitter, Facebook and various other forms of modern media that you are somehow out of the reach of the law.

For any further advice or guidance on negotiating and drafting commercial contracts please contact any member of our Commercial Team.