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Email Evidence And The Paperless Trail |
Laws on electronic transactions in the US and Australia make emails valid as written documents. But court cases emphasise that it is the content rather than the form of email communications that determines whether they make enforceable contracts. |
Email exchanges can be like phone conversations, where, as one judge said, "the parties are really just 'talking' with the help of the internet, and not sitting down across a virtual table to electronically 'write up' a memorandum of any contractual significance". |
In one case where someone was suing over an alleged email contract for sale of land, the court found that the exchange of emails exhibited no meeting of the minds. The emails lacked the essential terms of the contract, including the amount of the deposit and how the parties intended to deal with a commercial lease on the land. |
But emails can constitute enforceable contracts. In a recent case, the judge said: "While 'writing' often contemplates writing on paper, it is nonetheless writing and not speech, if written in invisible ink. It is nonetheless writing, and not speech, if written in the sky by an aircraft engaging in skywriting. To my mind, it is nonetheless writing, if it appears on a computer screen, as a result of the entry of data into a computer." |
Whether or not an email satisfies a statutory requirement for writing depends on the circumstances in which the email was made. |
Avoiding forgery
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For the most part, email authenticity isn't a problem, and we manage to muddle along with email as one of our primary modes of communication. |
However, there is a need for greater scepticism when it comes to email evidence. Comparing the essential properties of email and paper, we can see that modifying text on paper leaves a mark, whereas the substance of emails can be modified without obvious trace. |
Handwritten signatures are distinctive and serve to authenticate the author. An email equivalent of a signature is technically possible, but it is not widely used. |
Determining an email's authenticity requires both corroborating evidence and technical expertise. Email metadata is information stored as a part of each email, but usually hidden from view. It can indicate, among other things, the path an email has taken from sender to recipient, and when it was received. Careful analysis can detect tampering or outright forgery. There are also mail server logs - records maintained by email-handling systems. |
Further, records of an original email typically remain on the computer on which it was composed. At the simplest level, identifying an email in the 'Sent Items' folder of a computer will go a long way to establishing that the person in possession f the computer was the author. |
