Does the Law Accept Delivery via SMS?

[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.  We can help you to ensure that your notifications or communications (like electronic registered mail) with your customers or debtors are legally binding and enforceable.

The Question is will the law allow delivery by SMS?

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); or
• email.

The more one moves away from ordinary post and ordinary email, 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 will be interesting to see what its uptake is like when its launched.

The Problems with Ordinary Mail

There are many problems with ordinary email.

1. 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.
2. Secondly, it could get caught up in a spam filter.
3. And thirdly, even if you 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.  Email 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, and include post, registered post, email 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.

When can you deliver by Email?

The legislature has expressly allowed for delivery by emailing in a variety of statutes, including:

• the National Credit Act, 34 of 2005 (Sections 65, 96, 110, 113 and 168 in particular),
• the Employment Equity Act, 55 of 1998 (see the definitions of “serve” or “submit”),
• the Income Tax Act, 34 of 1953 (Section 106), and
• the Value Added Tax Act, 89 of 1991 (Section 45).

Where the parties fail to can agree contractually that delivery will take place using a particular method, the law steps in. For example, where two people conclude a contract. Here there has to be an offer and acceptance of the offer.

• Acceptance by way of post will result in the contract being concluded at the time when and at the place from where  acceptance is posted.
• Where acceptance is notified by means of a fax, the contract is concluded at the time when and place where the offeror learns of the acceptance.
• The ECT Act governs email. Section 23 prescribes the deemed time of dispatch of an email (data message) as being the moment when the email enters an information system that is outside the originator’s control. It provides that the email will be deemed to have been received when the complete message is accessible to the addressee at an address designated or used by the addressee. Messages are deemed to have been sent or received from the person’s or entity’s usual place of business or residence.

Choosing your own method

So where an Act does not specify a particular method of delivery, the parties are free to choose their own. This is where email and SMS’s can be useful.

A good example of where it is preferable (and legal) to use email over post is where you want to deliver documents to a large number of people. Let us say a bank or insurance company wants to make the privacy disclosures that will have to be made under the Protection of Personal Information Bill (which is currently in Parliament) to say three million clients around the cross-selling of data within the organisation.  This would require a special campaign which would involve the use of brochures or notifications to a client to be posted to them by registered post at a cost of R15.85 per (small) letter (at current Post Office rates). This would equate to a campaign of around R47.550 million.  Clearly an alternative, and a cheaper, way of doing so would be better! Make the disclosure in regular communications with your clients (via email or ordinary post).

Another example would be where someone wants to send a letter of demand for a small amount of money owed and in circumstances where the client does not intend instituting legal proceedings against the client (for example in the case of a company which is only collecting small amounts of money from a client, but has several thousand clients who owe it small amounts of money – such as Telkom or the SABC). Here an alternate method of delivery to registered post, such as SMS, could be considered. Thanks to regulatory quirks, SMS is still a relatively uncluttered and spam free channel. As noted from the New York Times article quoted in the beginning, it is also the one form of communication that many people are tethered to 24/7 and 90% of all SMS marketing messages are opened (83% within one hour).  This is a very interesting statistic.

The time has come to start thinking about the most cost-effective and efficient ways of delivering documents.