Sept - Dec 2016
Global Digital Innovation
Edu Tech 


Social media and contract law

By Ayesha Dawood

Have fun – be creative – network and know that your Twitter, Facebook, LinkedIn contact address is governed by the Law of Contract.

When you send and invite and/or accept an invite – there is an unequivocal offer and acceptance.  Animus Contrahendi which means the express and implied intention to be bound by ones offer and acceptance has occurred.  You have agreed that your e-mail address may be used to send you mail including unsolicited commercial mail.  Off course you can THEN – express a preference to OPT OUT. This Opt Out constitutes a revocation of your offer.  

An agreement is made when an offer is accepted. By issuing an invite – you tender an offer. By accepting the invite the recipient has accepted your offer.  This means you have both consented to the use of each other’s e-mail addresses.

Social Media sites – may or may not provide personal options:  

Facebook terms of service (TOS) – are tailored to allow you the option of controlling who can look you up by using the e-mail address or phone number you have provided.  The options are: Everyone ——-Friends of Friends——- Friends.    This allows you a measure of autonomy – but it does mean it is limited to 3 choices and that of these choices – the offer and acceptance of an invitation – means that you have consented to use of your e-mail.

LinkedIn – offers a friendly user obligation guide: “Do not abuse the LinkedIn service by using it to spam, abuse, harass, or otherwise violate the User Agreement or Privacy Policy”. Here too – the law of contract applies and offer and acceptance imply that you have consented to use of your e-mail.

Twitter – gives you the option of allowing “others to find me by using my email address”. If you do tick this – you have a double consent – twitter consent and the law of contract in play.

This is why the law of contract becomes and is so significant in regard to your social media sites – and your privacy.  

 In the realm of social or social business your contact e-mail address in the card drop off incentives needs to analysed.  You are often invited to place your card in a box with a promise that a draw will take place and a prize offered.  In this case – the offer is made when the invite to place your card is made. Your acceptance of the offer is when you drop your business card into the incentive box.   An agreement by conduct is constituted. So think carefully before you drop off your card into a box albeit how tempting the prize draw is.  

Prudence and choice are always yours in your social media engagement  – you  can always elect to revoke your acceptance or simply decide not to list your e-mail address.


South African case law hints at the intersection of social media platforms and case law and reflect a wider ambit of laws and common sense : Facebook substituted service for legal documents were allowed in Kwa Zulu Natal High Court  in CMC Woodworking Machinery ( Pty) Limited  and Pieter Odendaal Kitchens Case No. 6846/2006  were service by sheriff was not possible as the recipient avoided service. This case – hints at the trajectory of social media legal trends that may just be emerging – and while the court does not emphasise nor look at contractual principles as the parties were not friends but rather looked at this in the realm of privacy as the send message icon was private to the recipient.     Privacy again reared its head in the case of H v W (12/10142)[2013] ZA GPJHC1 ( 30 January 2013), which is currently on appeal – and the Court  noted that “ Not only does our law protect every person’s right to dignitas (inner tranquillity) but also to fama (reputation)”. Privacy (in this case the right one’s reputation and not be defamed) seems to thematically asserts itself in social media litigation and the court held that the posting of defamatory Facebook letter be removed from Facebook and other social media sites.

Case law and decisions while not in relation to the tenor of this article regarding e-mail invites and acceptance but in the realm of employment relations have held that an employee’s public facebook status updates were admissible in their dismissal for misconduct.  These CCMA (Commission for Conciliation Mediation and Arbitration) cases were decided in the realm of admissibility and the rules of evidence:  Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA) and  Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA).  South African Case law in regard to social media is only just starting to emerge and will develop and this trajectory and case law offers insight into this new and fascinating evolution.  Watch the evolution.



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Creator Spaces   Designing Innovation Economics


Ayesha Dawood

I liked this when I came across it “Thinking is a kind of making, and making is a kind of thinking" says Jessie Shefrin former Provost of The Rhode Island School of Design and past Dean of Graduate Studies of The Rhode Island School of Design.

I like this too, alot 'design thinking ... is the expression of communication – the form itself...' that is the response I got when I asked John Maeda, at a talk at MIT this year what design thinking is -- Is it the form, is it the way it is presented .. and how does it impact international affairs? His response has got me mulling on innovation economics – and a very 21st century focus. The innovation economics idea was introduced to me by Professor William Fisher of Harvard Law School, Wilmer Hale Professor of Intellectual Property. And so Professor Fisher I take the liberty to propel this idea to designing innovation economics in the 21st century. So here I am positing Creator Spaces as innovation economics in action. And yes, Prof Fisher, Intellectual Property is important and as you say, only and only if it creatively engages with culture. So I take the creative engaging with the culture of a people, the culture of counties ... to a culture of creation. So, I am building and creating and designing too. Is this Ronald Dworkin`s chain novel theory playing itself out – a step by step building of things.

In particular I focus on Creator and Maker spaces which I call Creator Spaces. It is a movement rapidly gaining traction – and pioneering new pedagogies – tinkering, creator and playful learning pedagogies. No doubt this is influencing and will continue to improve a whole new wave – tinkering, playful learning and learning through play and exploration heralding novel creations as well as iterations in the new edu- tech era.

This is innovation economics birthed. A world of tinkering, software and hardware creation including an immersive engagement with technology and with materials –that is what empowers us to be courageous and creative. To make, to create – the art of playful learning and innovator spirit is boldly borne.

In seeing what we create – both online with immersive engaging of technology to building with our minds and hands to creating with materials to embracing the realm of possibilities and yes frameworks ( the lawyer in me screams legal frameworks as much computational thinking calls for system frameworks ). That is the power of Creator Space. They energise, motivate, uplift and propel growth in ones own sense of self, in creativity, in making, in building, in designing and cognition and critical thinking. And this is why it makes sense – it is innovation economics in both the digital and physical – a new form of a connected world – a world of immersive technology made simple – a world of creative making and a world of design and designing new things – software, new hardware, new things and while the search for new hardware forms and hardware materials is increasingly opening up new possibilities in materials.... Creator Spaces are about working with what is available as well making new from afresh and in that process new forms are birthed – New software creation is Creator Space and open source learning and remixing also lend impetus to this. See what amazing creations Scratch, an open source computer programme inspiring community learning and inspiring kids to create stories, animations and games - initiated at the MIT Media Lab Lifelong Kindergarden Group - is doing for kids globally here

Designing Creator Spaces is about inspiring people to take charge of their minds and ideas. I marvelled at watching the excitement and agility of the kids at MIT `s Scratch Day this May. Boundless enthusiasm and fun creations – and such confidence.

A new creator pedagogy in the making – yes – but maybe not so new in Africa and emerging economies where creator crafts and tinkering necessities were birthed. It is this staple that will take the shift to tinkering and artful play in emerging economies to levels unparalleled and a boon for innovation economics. Now that is design thinking innovation economics.  Creator Spaces is innovation economics. And yes, Intellectual Property matters.

Ayesha Dawood is a lawyer, writer and artist and educator. She is a Harvard and South African educated lawyer (@ConsultAyesha) She has an LL.M from Harvard Law School and is a recent Fellow of the Weatherhead Centre for International Affairs, Harvard University.