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| Proves Sending |
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Proving that a message has been sent is different
from proving that it has been delivered. Sending
a message may satisfy statutory or contractual requirements
even if the message is, in fact undeliverable. Indeed,
proof that a message has been sent and delivery
attempted may be all the more important if it cannot,
in fact, be delivered.
The presence of a message in the "Sent Items"
folder of an e-mail program cannot constitute proof
of sending. Most mail programs allow messages to
be transferred to the sent folder without being
transmitted and for messages to be freely edited
within the "Sent Items" folder.
UETA (Uniform Electronic Transactions Act) provides
that a message is considered to have been sent when
it "enters an information processing system
outside the control of the sender" (UETA §
15(3).) Whether the message can be further considered
"sent to a particular recipient" is a
matter of whether the sender knows, or has good
reason to believe, that the address used is that
of the recipient (UETA § 15(a)(1) and 15(a)(2).)
If a recipient submits a particular e-mail address
to the sender in the course of business, and the
sender and receiver maintain a business relationship,
the sender has "good reason to believe"
that this is the current address of the intended
recipient. If the sender can document a delivery
failure to such an address, then sending a message
with a documented delivery failure may satisfy statutory
or contractual requirements even if the message
is, in fact undeliverable.
By these standards, a message would count as sent
if it were transmitted to the sender's Internet
Service Provider (ISP) for relay on to its subsequent
destination. Note, though, that in the normal course
of events, the sender does not have proof of such
transmission. In the case of corporate users, where
organizations typically control their own mail server,
messages could not be said to have passed to systems
"outside the control of the sender" if
they are not delivered to their destinations. In
such an environment, no message can count as sent
unless it is delivered and uncontested conformation
was returned to the sender.
Under the provisions of UETA, RPost receipts constitute
proof of sending even if the receipts report a failure
of delivery. The receipts record the arrival of
a message at the RPost Registration System™
, which is outside the control of the sender or
recipient. |
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