Online Legal…

SMS is “the one form of communication that many people are tethered to 24/7. Which helps explain why, at a time when in-boxes fill with hundreds of never-opened e-mail messages from direct marketers, 97 percent of all SMS marketing messages are opened (83 percent within one hour), according to the latest cell-carrier research” - according to Mark Cohen writing in the New York Times.

In the same article, Jeff Lee, the President of Distributive Networks, said “I like to think of it [SMS] as the certified mail of digital communications.  When you want to be sure people see something, sent it by text”.

Think about it? Wouldn’t it be useful to deliver Letters of Demand (or summons’) this way. How would you do it? Post the relevant document to a website and then send the TinyURL via SMS.  TinyURL is a web service that will shorten a long URL so that it can fit into an SMS.  See http://tinyURL.com/.

The question is will the law allow this?

The short answer is that unless the law prescribes a particular method of delivery, the parties are free to choose their own.

Well let’s see what forms of delivery the law currently allows:

• Delivery by ordinary post;

• registered post;

• by hand (courier);

• e-mail.

The more one moves away from ordinary post and ordinary e-mail, the more one moves into the realm of more reliable forms of delivery.  The reason: the uniqueness about registered post for example is that the identity of the recipient is properly authenticated when the recipient shows the SA Post Office his ID book when he collects a registered document.  The SA Post Office is the only company in South Africa which is allowed to offer e-registered post. It recently sent out a tender for e-registered post, so it will be interesting to see what its uptake is like when its launched.

There are many problems with ordinary email. Firstly, because email is broken into several packets, many of which go through different email servers en route to the intended recipient, the email may not reach its end point. Secondly, it could get caught up in a spam filter. And thirdly, even you use enable the “read-receipt” function, the read receipt has to be requested by the sender, and the recipient may or may not comply.  Where used, the read receipt indicates the time the message was previewed or opened, as well as possibly the location of the recipient’s computer and the duration the message was kept open. Although it is called a “read” receipt,” there is no guarantee the person actually read any of the text.  The message could have been opened and immediately deleted.  E-mail client programs such as Outlook support read receipt requests and responses, while Web-based e-mail does not.

It is for these reasons that some companies offer an online email tracking service (e.g. CertifiedMail which “provides secure, trackable messaging between any Internet users with an e-mail client and a web browser”).

So what determines what method of delivery one will use? Unless the law prescribes a particular method, the parties are free to choose their own. So where an Act specifies a particular method of delivery, the parties have to use that method of delivery.

The Legislature often drafts legislation in which it considers appropriate methods of delivery.  The methods of delivery vary from legislation to legislation.  Included are post, registered post, e-mail and “personal delivery”.  The method of delivery often depends on the context and purpose of the statute, the documents being delivered, the parties involved and the consequences of improper or non-delivery.  Regarding e-mail, the legislature has expressly allowed for delivery by e-mailing in a variety of statutes.  These include

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