Validity of Electronic Contracts in the UK

Validity of Electronic Contracts in the UK REGULATIONS AND CASE ANALYSIS ON THE VALIDITY OF ELECTRONIC CONTRACTS IN UNITED KINGDOM[1] The validity of Electronic Contracts in United Kingdom Legal background of UK legislations on Electronic contracts In the late 1990s, the lack of a legal foundation for e-commerce has caused many European countries to separately enact electronic signature law.[2]Such a trend has raised a concern to the EU as a whole for the differences there might be.[3]In addressing the issue, the EU has come up with the Directive on a Community Framework for Electronic Signatures (EU E-Signatures Directive).[4]The Directive requires implementation by all member states by July 19, 2001.[5]The Directive mainly deals with, inter alia, the recognition of electronic signature, technological neutrality, and international harmonization.[6] As a result, the Electronic Communications Act 2000 (ECA) and the Electronic Signatures Regulations 2002 (ESR) are the implementation of the EU Directive. 2. Electronic Communications Act 2000 During the history of English contract law, it has addressed and reconciled the validity issue of signature on the basis of their forms. Several forms of signatures were given legal validity such as initials, marks, seals or printed name.[7] When it comes to electronic signatures, UK maintained their perspective as to relying on the function performed by the signature method in determining its legality; this approach is called the technology neutral approach.[8] The ECA heavily inherits of this technology neutral approach. The ECA focuses on three main issues: (i) the validity of electronic signatures, (ii) the validity of electronic records in transactions, and (iii) the legality of public key cryptography.[9] Section 8 and 9 of the ECA removes the barrier between electronic documents and their paper counterparts. As such, electronic records are given legal validity on a case-by-case basis. The act also authorizes the Secretary of State to enact secondary legislations.[10] 3. Electronic Signatures Regulations 2002 The ESR came into force on March 8, 2002.[11]The main focus of the ESR is to implement certain provision of the EU E-Signatures Directive, especially the one concerning Cryptography Service Providers, including liability and data protection.[12] The ESR and the EU E-Signatures Directive share the same definition for electronic signature. Under the ESR, a legal person can be a signatory. The two legislations also share the same two types of signature, which is basic and advanced signature. Since UK contract law does not distinguish the notion of handwritten signature, theres no need for the ESR to specifically recognize the validity of an electronic signature as an alternative for the handwritten ones. However, various [U.K.] legislative acts have generally recognized [sic] that an e-signature is a valid form of signature in the specific context concerned.[13] Data messages under UK legislations Definition of data messages under UK legislations Under English legislation, data messages was addressed under the name of electronic communication. Section 15 of the Electronic Communication Act 2000 defines electronic communication as follows: A communication transmitted (whether from one person to another, from one device to another or from a person to a device or vice versa)- By means of a telecommunication system (within the meaning of the Telecommunication Act 1984); or By other means but while in an electronic form This broad definition covers all kinds of communication transmitted through a device to a telecommunication network, including a telephone, fax, computer or laptop. Regarding electronic contracting, the EDI might be the oldest form of computer-based electronic contracting.[14] Origin of data messages under UK legislations In England and Wales, it is also difficult to determine when and where the electronic communications are sent from. English legislation requires some physical manifestation of the subject matter, or the parties intent. Its not much important to search for the time of place where the electronic communication generated, but several legal aspects relied on these two factors. Electronic communications, in their nature, are intangible to the outer world, unless stored of physically manifested by electronic equipment. Even if the electronic data is stored in the device, it can be easily deleted or modified without leaving any trace of the interference. This is a major issue of evidential value of electronic data, for example, as to the existence of a contract or a contractual term. Evidential validity of data messages under UK legislations Electronic evidence has been subjected to special legislation in England for many years. The admissibility of data message in England was governed by a lot of rules, much more than those of traditional paper evidence. Section 5 of the Civil Evidence Act 1968 provides that a computer-produced document shall be admissible as evidence, provided that the proponent can demonstrate its authenticity. The person who wishes to submit electronic evidence must establish that: The document was prepared during a period over which the computer regularly stored or processed information; Over the relevant period of time, information of this type was regularly supplied to the computer; The computer was operating properly; and The information contained in the statement reproduces information supplied to the computer.[15] Without any of the above conditions, the electronic evidence would not be admissible. On the part of the proponent, not only he must prove the authenticity of the evidence, but also its reliability, often times by acquiring a certificate signed by a person responsible for the operation of the computer.[16] Time and place of data messages under UK legislations Time of data message under UK legislations In England and Wales, as well as many other countries, the courts face with a difficult issue of which rule between the dispatch rule and the receipt rule should be apply in certain cases. In fact, the solution for a previous case does not necessarily solve the problem in a new situation. Time of dispatch Some argued that the dispatch rule (originated from the postal rule) should be applied in those cases dealing with e-mail communication, but not to online transactions.[17] The reason for this is because they observed that e-mail communications share many feature with the old-time postal communication, for example, after the sender hit the sending button, he or she has very little control over what would happen to the message, or not at all. In other words, he did all he could in messaging the other party. Of course there might be some delay or problem as the two parties often do not communicate simultaneously. It was suggested that a modified postal rule should be used to deal with the formation of nowadays electronic communications. Time of receipt Should the court apply the receipt rule for contractual formation, the crucial issue would be the time of receipt of that piece of communication. In fact, one would find a lot of identifiable point along the communication process that would fit the receipt category.[18] The Electronic Commerce Directive of UK does not deal with the contractual acceptance but it does shed light on the time of receipt of a message. Article 11 of the Directive provides for the situation where an order was placed with a service provider and that service provider must acknowledge the receipt of that order. The order and acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.[19] The phrase able to access them was the subject of various debates. It is believed that the phrase was imported directly from regulation 11(2)(a) of the EC Directive and according to the Guidance for Business, when the message is capable of being accessed by the recipient it will be deemed received, which doesnt explain anything as to this interpretation.[20] For instance, if a data message is sent in the middle of the night, it must be deemed capable of being accessed, but is it reasonable to require a consumer to check a message in the middle of the night? In most of the case, after dispatching, no one would expect that message to be received at that time of the day. Place of data messages under UK legislations According to the general rule, the formation place of an electronic contract would the one where acceptance was communicated to the party making the offer. In specific situations, the place of acceptance was the place where the party making the offer received the acceptance. As a matter of facts, courts must look into details of the circumstance to decide which rule should be applied. Electronic signatures under UK legislations The ECA broadly defines electronic signature as so much of anything in electronic form that is incorporated into or otherwise logically associated with any electronic communication or electronic data and purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.[21] From the above definition, an electronic signature can be broken into three elements, namely (i) so much of anything in electronic form, (ii) incorporation or logical association, and (iii) purports to be used by the individual creating it to sign.[22] The first requirement of an electronic contract is the electronic form. This is such a broad provision so as to make sure that new concepts that are yet to be invented would be covered by the definition. The second requirement of an electronic signature is the incorporation of logical association with an electronic communication or electronic data. The signature could be deemed incorporated or logically associated by the way it is created. For example, in the process of creating a digital signature, the software could take part of the plaintext and create a message authentication code, which allows a recipient to check whether the message has been altered. As a matter of fact, the authentication code is separated from the message but at the same time incorporated into it. Another instance is where a biometric measurement is attached to a message. In this case, the biometric measurement would only function when it is associated with the message. There are many other ways to produce an electronic signature but the same principle is applied to all of them, even though the function of the electronic signature may vary from case to case. The third element of an electronic signature is the intent of authenticity[23] by the signatory in creating the electronic signature. There are cases where the person who the signature purports to be was not the one who actually caused it to be affixed to the data. In those instances, the electronic signature failed the third requirement. In terms of the admissibility of electronic signatures required by the EU E-Signatures Directive, the definition of electronic signature in the ECA is said to be too broad.[24]Understandably, the ECA looks to make room for technological innovation; therefore the definition was intentionally left unspecific.[25]However, the ECA should ensure the analogous binding characteristic of an electronic contract as a handwritten one, i.e. section 7 (3) of the ECA should not allowed authenticity and integrity to be separated by going beyond the interpretation of advanced electronic signatures.[26]It is similar to having a signature on a piece of paper on an unsigned contract and telling that the contract is signed. Moreover, section 7(3) also allows separate the data and the communication, which raise an issue of the non-repudiation characteristic which requires the integrity of both the data and the communication. Analysis on some significant cases of Electronic Contracts in United Kingdom Case 1: Golden Ocean Group Limited v. Salgaocar Mining Industries PVT Ltd. and another [2012] EWCA Civ 265 This English case shed some light on the enforceability of a contract of guarantee where a series of documents have been duly authenticated by electronic signature of the guarantor. The facts of the case The plaintiff of this case, Golden Ocean Group Ltd (Golden Ocean), was a shipping company. The defendant was Salgaocar Mining Industries PVT Ltd (SMI). In early 2008, in reply to Golden Oceans offer to charter SMI a vessel, SMI nominated Trustworth Shipping Pte Ltd (Trustworth), a related company. The negotiations were conducted via email on the basis that Trustworth fully guaranteed by SMI. Golden Ocean later claimed that Trustworth had repudiated the charter and that it was guaranteed by SMI. The defendants argued that the email chain was insufficient to create a binding guarantee according to the Statute of Frauds. Legal issue The issue of this case was whether the email chain constituted a binding guarantee or not. Judgment of the court The court rendered a judgment for the plaintiff, agreeing that Golden Ocean had a well arguable case that the document was in writing and did not contradict the Statute of Frauds. As such, the court set forth the following reasons: First, the judge rejected the argument that the agreement between the parties was not in writing according to the Statute of Frauds. The phrase fully guaranteed by [SMI] can only be interpreted in the way that the charter party was guaranteed by SMI, instead of to be guaranteed as the case may be. Neither did the judge accept the idea that there should be some limitation to the number of documents to be permissible in the case of writing. The court emphasized that it was highly desirable that the law gives effect to the communications which are more than clearly than many negotiations between men of business, the sequence of offer, counter offer, and final acceptance by which, classically, the law determines whether a contract has been made. Regarding the signature issue, the court concluded that the contract was signed by way of the electronically printed signature of the person who sent them and it sufficed the test of a valid signature according to the Statute of Frauds. Case 2: Hall v Cognos Ltd Industrial Tribunal Case No.1803325/97 The facts of the case Hall was employed by Cognos as a sales executive. Under the employment contract, Halls expenditures incurred for travel, accommodation and other reasonable cost would be covered by Cognos, under the condition that it would not exceed 6 months. Hall failed to submit the claim within 6 months so he asked Sarah McGoun and Keith Schroeder, his line manager, whether these expired claimed was okay for him to get his recovery. The reply was Yes, it is OK. They communicated through a series of emails. Hall later submitted his request but Cognos refused to accept any payment. Legal issue The issue of this case was whether emails can suffice the writing test and be considered as signed once theyre printed out. Judgment of the court The court rejected the claim for Cognos that because the emails were not in writing and signed, they didnt have any effect. Instead, the judge concluded that emails were in writing and signed once they were printed out. [1] In the UK, there are three different legal territories: England and Wales, Scotland and Northern Ireland. For the purpose of this chapter, the UK law or English law represents the law in England and Wales. [2] Anthony Burke, EU and Irish Internet Law: An Overview, 13 INTL L. PRACTICUM, Autumn 2000, at 107, 113-15 [3] Mariam A. Parmentier, Electronic Signatures, 6 COLUM. J. EUR. L. 251, 252 (2000) [4] Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community Framework for Electronic Signatures [1999] OJ L13/12, 19.1.2000. [5] Id., Art. 13 [6] Jacqueline Klosek, EU Telecom Ministers Approve Electronic Signatures Directive, 4 CYBERSPACE LAW. 12 (2000). [7] Mincoff, M., An Overview of Electronic and Digital Signature Legislation and Regulation in the United States: Silanis Technology, 1999 [8] Reed, C., What is a Signature?, Journal of Information, Law and Technology,2000 [9] Murray, J., Public Key Infrastructure Digital Signatures and Systematic Risk, Journal of Information, Law and Technology.2003 [10] Id. [11] Interdisciplinary Centre for Law Info. Tech., Katholieke Universiteit Leuven, Study for the European Commission: The Legal and Market Aspects of Electronic Signatures, 215-16 (2003). [12] Id. at 215 [13] Xxx Interdisciplinary Centre for Law Info. Tech., Katholieke Universiteit Leuven, Study for the European Commission: The Legal and Market Aspects of Electronic Signatures, 215-16 (2003) [14] The most mature form of electronic contracting is electronic data exchange (EDI), which permits trading partners to exchange commercial documents electronically. Baum, M.S. Perritt, H., Electronic Contracting, Publishing and EDI Law, Wiley Law Publications: New York, 1991, at 2 [15] Section 5(2) of the Civil Evidence Act [16] Ibid., Section 5(4) [17]See Murray, A.D., Entering Into Contracts Electronically: The Real W.W.W., in Edwards, L. Waelde, C. (eds) Law and the Internet: A Framework for Electronic Commerce 2nd ed. (Hart: Portland, Oregon, 2000) at 26 and Downing, S. Harrington, J., The Postal Rule in Electronic Commerce: A Reconsideration, (2000) 5 (2) Communications Law 43 [18] For example, the point at which an e-mail arrives at his service providers server or the point at which the e-mail is downloaded to the recipients computer [19] Article 11 of the Electronic Commerce Directive [20] Guidance for Business on the Regulations 5.29 (a) [21] Section 7 (2) of the ECA [22] See Stephen Mason, Electronic Signatures in Law, 4th edition, 2016, at 171 [23] Section 15 (2) of the ECA provides for 3 tests to determine the authenticity of a communication or data, which are: whether the communication or data comes from a particular person or other source; whether it is accurately timed and dated; whether it is intended to have legal effect. [24] Section 7 of the ECA [25] Section 7 (2) of the ECA [26] This may be to satisfy Article 5(2) of the Directive that requires that electronic signatures are not denied legal effectiveness and admissibility as evidence.

The Mammy

Mammies, Matriarchs and Other Controlling Images Patricia Hill Collins: Black Feminist Thought Chapter Main Concepts: – As it relates to African-American women, the intersecting oppressions of race, class, gender and sexuality could not continue without powerful ideological justifications for their existence, which is perpetuated through controlling images. – Controlling societal images is one of the many powers held by the dominant group (white males) in the U. S. to manipulate ideas about black womanhood. Through the perpetuation of these controlling images of the black woman as the mammy, matriarch, welfare queen, jezebel/hoochie and black lady, black women become objects instead of subjects ? i. e. domestic workers are often referred to as â€Å"work mules/animals† or â€Å"girl† – Like other people of color and subordinate groups, black women are seen as the â€Å"other† in our society. By not belonging, black women emphasize the signifi cance of belonging. ? Black feminist thought derives from this kind of thinking, as a means to resist these controlling images.Black women insist on the right to establish and define their own reality Controlling Images and Black Women’s Oppression – During this slavery era images of black women were socially constructed to maintain their subordination – Unlike Black women, white women were encouraged to possess four cardinal virtues: piety, purity, submissiveness and domesticity ? Mammy: – Asexual, faithful, obedient domestic servant; yardstick used to measure all black women behavior – Image aims to influence maternal behavior; raises children to know place in society Matriarch: – Spends too much time out the home working; overly the aggressive; emasculates husbands and lovers; unfeminine. Unlike mammy, she is the â€Å"bad† black mother – Introduced in a government report on Black poverty in 1965 called the Negro Family: The Case for National Action (Moynihan report) ? The report blamed black mothers for their children's failures; working lead to a lack of attention and care; delinquency; Further asserts that slavery destroyed black families by reversing roles of men and women Black backlash- Diverts attention from the reality of political and economic inequalities that shape black children experiences ? Welfare Queen: – Makes use of social welfare benefits to which they are entitled by law; Lazy; fails to pass on work ethic; alone; updated version of â€Å"breeder woman† during slavery – This image provides justification for the efforts to control black women’s fertility to the needs of a changing economy ? i. e. during slavery children were valued as property the more slave children you have the more assets you have After WWII black women and their children seen as a economical liability – During the 1980s, despite Reagan and the Republicans opposition, Black women and children could not be forced to work, and Black men dropped out of legitimate labor force ? Prison Industrial Complex ? Jezebel/ Hoochie: – Represents a deviant black female sexuality; originated under slavery to justify the many assaults against slave women by white men ? These women are seen as having a strong sexual appetite which leads to an expected outcome of increased fertility Hoochie unlike the Jezebel is an image accepted by the Black community ? Three types of hoochie: plain, gold digger, hoodrat – Normal female heterosexuality is expressed in terms of true white womanhood unlike the black â€Å"hot momma† – Because of black women sexual appetite is seen as inappropriate or worst, insatiable, black women are characterized as freaks and become stigmatized in society – Black women sexuality and fertility is defined by the dominant group (white men) ? Black Lady: Combination of the mammy and matriarch – Claire Huxtable, The Cosby ShowControlling Images and Social Institutions – Schools, news media and government agencies constitute important sites for reproducing controlling images usually based on the idea of black women having some kind of deviant sexuality ? Social science research; AIDS and teen pregnancy ? Popular culture; Black hip hop music ? Accessibility to birth control measures – Controlling images are also perpetuated in Black institutions ? Family, church and civic organizations are all sites where controlling images of black women are simultaneously resisted and reproduced.Color, Hair Texture and Standards of Beauty – Despite the resistance of Black women to being objected as the â€Å"other†, controlling images still influence their lives, becoming even more visible. They impact how Black women interact with the world ? Speaking standard/proper English somehow makes you less black i. e. â€Å"I never think of you as black†; â€Å"I don’t see race whe n I’m with you† – The binary thinking between Black and white beauty: ? Thin, white, blonde hair and blue eyes are not beautiful without the â€Å"other†, full lips, broad noses, dark skin and kinky hair White skin and straight hair privileges white women by being the standard of beauty; No matter what a Black woman subjective reality is, she’ll never meet the main stream standards of beauty – All women in U. S. are objectified, and their value determined by how they look, but Black is the most â€Å"un-American† Black Women’s Reactions to Controlling Images – Historically African American literature by women writer’s usually provide a comprehensive view of Black women struggles to form positive self-definitions in face inferior images Many fictional characters of Black women have themes of pain, violence and death that make up their lives; experiences of internalized oppression ? These characters use drugs, alcoho l, excessive religion, and even retreat into madness to attempt to escape painful black female realities ? Denial is another response to controlling images; â€Å"I’m not like the rest† – Black female writer’s also document the responses of positive self-definition by Black women ? The Color Purple (the conclusion) ? Waiting to Exhale ? How Stella Got Her Groove Back

Sample of Job Advert, Job Description and Person Specification

Job advert KANE Kane ltd. is a family business company with 8 local outlets for clothing. Aside the 8 outlets, they also have an office in San Gwann. The company is recruiting people as: CUSTOMER CARE OFFICER (REF: 71193) The candidate should have at least 6 O’Levels including Maltese, English and another language, 2 years experience in this job role, be well organised, be responsible, be good to work in a group as well as working on their own, have ECDL, have good communication skills and are willing to work. Good conditions are given to the selected candidate as well as bonuses every June and December.Applicants should send their CV attached with an application letter by not later than 30th December 2012 to: [email  protected] COM or send via mail to: Mr. T. Bajada HR Manager Main Street San Gwann Job description KANE CUSTOMER CARE OFFICER (REF: 71193) The person having this job will have several duties such as taking telephone calls, taking messages, dealing with callers, filing, photocopying, assisting to the customer care co-workers and assistant and report to the customer care manager Mr. J. Schembri. This is a clerical job on level 2 and the selected candidate is to work in the new building in San Gwann.The customer care officer will have responsibilities such as: ? Answering telephone calls ?Taking messages ?Dealing with callers ?Filing ?Photocopying ?Typing reports ?Sending reports to the manager to let him know about complaints ? File reports in appropriate files ?Type, send and receive emails ?And other duties The customer care officer has to work with other customer care officers as well with the customer care manager. The applicant must have O’Level standard of education, preferably Maltese, English and another language and have ECDL.Name of complier: Roxanne Bartolo – HR Assistant Name of approver: Ms. P. Pace – HR manager Date of issue – 3rd December 2012 Person specification KANE CUSTOMER CARE OFFICER (REF: 7 1193) Post title: customer care officer (Ref: 71193) Grade: clerical level 2 Date: 3rd December 2012 CRITERIA ESSENTIAL DESIRABLE Qualifications ?O’Levels – English ? – Maltese ? – Another language ? ?ECDL ? Experience ?2 years experience ? Social aptitudes ?Multi-tasking ? ?Responsible ? ?Typing ? Temperament and personality ?Calm ? ?Smart personality? Personal circumstances ?Fulltime ? ?Can work over time ?

Innovation and Strategic Management Annotated Bibliography.

Innovation and Strategic Management Annotated Bibliography Article One: Innovation and Strategic Management Annotated Bibliography Sà ¡nchez, A., Lago, A., Ferrà  s, X., Ribera, J (2011) Innovation Management Practices, Strategic Adaptation, and Business Results: Evidence from the Electronics Industry. Journal of Technology Management Innovation; 2011, Vol. 6 Issue 2, p14-39. Retrieved from Ebscohost The study in this write up was conducted to carefully evaluate if any; the relationship between bring up new ideas and working guidelines and the benefits to a company down the road. Studies have over time suggested that agencies run under government make efforts to encourage creativity and new†¦show more content†¦It showed that trust, more business links and better understanding of standard principles were fostered by the incorporation of new ideas into any business. Such examples of new ideas had a direct effect on the progress of a business was when Apple produced the iPhone and iPad. The iPhone and iPad gained Apple serious ground in the technology battles that has been raged on in the past decade between Microsoft and itself. Microsoft has once countered with their own tablet with help from companies like Samsung. As technology continues to advance and more companies dive into the technology market, there will be more examples of new ideas that progress the business as whole. All I know is there are many interesting and fascinating ideas still on the rise for consumers and businesses alike. Conclusion From many of these examples and articles, we can gather much information over the relationship between innovation and strategic management. Although, some areas may not be proven in its fullest capacity, there are undoubtedly ways that innovation improved business operations and practices, which can be seen in examples such as Apple, Microsoft, Dominos, and Samsung. On the other hand, not every business incorporating innovation is a success story. In the dynamic days we find ourselves in today, business and organizations are digging deeper into the wells of innovation. We have all come to enjoy the benefits and I am not sure of anyone that would want toShow MoreRelatedMGT411 week2 Annotated Bibliog Essay656 Words   |  3 Pagesï » ¿ Annotated Bibliography Gilbert Juarez MGT 411 NOV 18, 2014 Professor Martha Alcala Annotated Bibliography Article One: McConnell, C. R. (2007). The Healthcare Managers Human Resource Handbook (1st ed.). Retrieved from UOPX Although this was a Human Resource Management book the topics related to organizational function that deals with issues related to people such as compensation, hiring, performance management, organization development, safety, wellness, benefits, employee motivation, communicationRead MoreThe Chicago School Of Professional Psychology Essay1221 Words   |  5 PagesWritten Assignment 4.1: Annotated Bibliography Luis A. 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