In too many situations, a discussion can end up as an argument between what was originally communicated between two parties. You know the sort of thing: “I only bought this because you promised that”; “You never told me that when we discussed it”; “Go on, then – prove that you said that”.
Many of the mis-selling cases that have cost financial institutions dearly have hinged on such a need to prove what was originally agreed. In many cases, the lack of proof from the seller’s side has been the problem – as long as the customer can claim that they were promised something or not told about something then the law will err on their side.
Likewise, credit card ‘friendly fraud’ is an increasing issue. With electronically provided goods (e.g. games, video, music), the buyer can claim that they never received the goods and claim back payment from the credit card issuer. The seller is then out of pocket in the form of the goods actually having been delivered, but not provably, plus the additional costs that the card issuer places on them for dealing with the case.
Organisations have tried various ways of dealing with such problems – all of which have been fraught with issues. Anything that depends on the recipient of an electronic communication to take an action – for example, responding to an email, clicking on a button on a web site or whatever – has been shown to fail the legal test of standing up in court in the long run.
However, one very simple tool is still there, even with the media and other commentators having long predicted its demise. Email still rules as the one standardised means of exchanging electronic information between two parties. It makes no odds what email reading tool the recipient uses and what system the sender uses, the fact of this strong standardisation and proven communications medium makes email a great choice as a starting point for evidential communications.
However, when it comes to legal proof of communication, depending on delivery and read receipts no longer works – it is far too easy for users to disable these (indeed, many email clients disable them by default). The actual content of an email cannot be counted on as being sacrosanct – it is just a container of text, and that text can be edited by the recipient or the sender.
Where legal proof of the actual delivered content is required, a different approach is required.
By placing a proxy between the sender and recipient, an email can be ‘captured’. The proxy takes the form of an intermediary where emails are sent automatically before being forwarded on to the original recipient. The sender still addresses the email in the normal manner – the proxy can be a completely transparent step in the process. The message can then be created as immutable content through the creation of a final form pdf file, timestamped and stored either by the sender or by the proxy. The message continues on its way to the recipient, who will be unaware that this action has been taken.
If necessary, any responses can also go via the proxy, creating an evidentiary trail of what was communicated between the two parties.
Such records then meet the requirements of legal admissibility – if it ever came to the point where a complaint had to go to court, these records meet the general needs of any court world-wide. However, the general idea is to avoid court wherever possible.
By being able to find, recover and provide a communication to a recipient along with proof that this is exactly what was sent and agreed to, most issues around proof of information communicated and delivered can be stopped quickly and cost effectively at an early stage.
Legal proof of communications is not the only value of such proxies. Consider the movement of intellectual property across a value chain of suppliers, customers and other necessary third parties. Details of something pre-patent has to be communicated to a third party. By sending it via a proxy, an evidentiary copy is created and time stamped, so ensuring that the sender’s rights to the intellectual property are recorded and maintained.
The use cases are many – travel companies can show what was agreed when a travel package was booked; financial companies proving that terms and conditions were supplied to a customer and agreed by them; electronic goods retailers showing that a message was sent and delivered to a recipient on a certain day and that the recipient then did click and download the product sold to them.
Quocirca has just published a report on the subject, commissioned by eEvidence. The report, “The myth of email as proof of communication”, is available for free download here.