Legal Responses to Commercial Transactions Employing Novel Communications Media

This Note analyzes contemporary business practices and specific characteristics of the new media, and suggests a judicial response consonant with courts’ approaches to the earlier technologies of telegraphy and teletype. Part I examines the effect of the Statute of Frauds and rules of authentication upon contracts formed using these media. It concludes that documents produced by telefacsimile and electronic mail systems should be considered ordinary writings. Part II considers the Best Evidence Rule and argues that telefacsimiles and electronic mail transmissions should be considered the best evidence of the contract they memorialize. Part III evaluates doctrines of liability allocation in the event of a transmission error while employing these media. It concludes that these doctrines are based upon theories of agency, common carriage, and contract law, rather than characteristics of individual media, and that telefacsimile and electronic mail systems do not require reconsideration of these doctrines. This Note concludes that telefacsimile and electronic mail services, like earlier systems of telegraphy and teletype, should be recognized as legally acceptable media for contract formation.