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E-Commerce News
Do You Know Who's Receiving Your IM?; German Court Says Ebay Offer Stands
September 13, 2005
DO YOU KNOW WHO'S RECEIVING YOUR IM
The Supreme Court of New Hampshire recently has ruled that recording the transcript of an instant message ("IM" for the hip among us) is not an unlawful "interception" because the complaining party impliedly consented to having the conversation recorded.
The case arose from an unfortunate incident for Christopher Lott. Mr. Lott entered an Internet chat room and used the Yahoo! Messenger IM service to lure "Kimmiesue87," who claimed to be a 14-year-old girl, to a sexual encounter. To Mr. Lott's surprise, when he arrived at the agreed location, he found that Kimmiesue was Detective Frank Warchol, definitely not a 14-year-old girl.
At his criminal trial, Lott asked the court to suppress the transcript of his IM conversation with the detective. The trial court denied the motion, and Lott appealed. The question presented to the Supreme Court was whether the recording of the IM conversation amounted to an unlawful "interception" under a New Hampshire statute that prohibited such interceptions. That statute, however, contains an exception for intercepts done with "the consent of all parties to the communications." The Supreme Court ruled that Lott's communication with the detective fell under the consent exception.
In analyzing the IM process, the Supreme Court found that, by its very nature, IM'ing creates a paper trail of the dialog. Using that form of communication amounts to giving implied consent for the other party to record the stream of the conversation. The court noted that "Like an e-mail message and a message left on an answering machine, the recording of an instant message is necessary for the intended recipient of that message to read the message."
Once the IM is displayed on the recipient's screen, it may be copied, saved to the hard drive, or printed using built-in features of the IM utility. Essentially, IM'ers have very little expectation of privacy. "[T]here is no reason to believe that a person who receives this type of instant message containing evidence of criminal activities may not choose to preserve that communication as evidence and turn it over to the police," the court said.
The bottom line is that you never really know who's on the other end when IM'ing a stranger. A little caution might be a good thing.
GERMAN COURT SAYS Ebay OFFER STANDS
A German appeals court has recently ruled that placing an article for sale on eBay constitutes a binding and irrevocable offer to sell.
A seller, who terminates the auction before the specified time period ends, is still obligated to accept a binding offer. According to the German Court, the seller may revoke the offer to sell and cancel the bids only by legally rescinding his expression of will in accordance with applicable provisions in the German civil code. Complying with eBay's termination procedures is not sufficient.
The German court issued its ruling in a case where a private individual selling a car over eBay stopped the two-week auction after approximately a week. When the prospective buyer with the highest bid demanded delivery of the car, the seller claimed that he had to withdraw the offer because he learned that the car had an oil leak. The seller felt that he was obligated to terminate the auction to avoid a lawsuit over a mistaken assessment of the condition of the vehicle.
Although the trial court ruled in favor of the seller, on the grounds that the offer was binding only if the auction ran through its entire pre-determined course, the appeals court overturned that decision.
According to the appeals court, it is necessary that the offer and bids be binding and irrevocable from the start of the auction. If not, bidders would be at the mercy of the seller to decide whether to recognize a bid as legitimate.
While the eBay terms and conditions specify possible reasons for terminating an auction (including an erroneous assessment of the condition of an article), those provisions are not designed to allow the seller to avoid awarding the article to the highest bidder, the appeals court said. Rather, to rescind the offer, the seller must comply with section 119 of the German civil code. Section 1 19 provides that it is possible to rescind an expression of will if the giver had been in error over the content of the agreement, or if an element of the article in question subsequently proves to be deficient in some essential manner.
In the case before it, the court determined that the seller's error in assessing the car's condition and his given reason did not justify his claim that he could halt the auction with no contract coming into being. A minor oil leak, which is easily repaired (although probably not inexpensively, as anyone who's ever owned a German car can attest) does not qualify as an essential defect.
According to the court's ruling, the disappointed buyer was entitled to a judgment equal to the difference between the bid and the estimated worth of the car.
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