When does the law require you to follow up an email to see if it was received? Is that a matter of prudence only, i.e. if you really have to know, you had better follow up? Are you liable for negligence for not following up, in important cases, or all cases, if the message was not received?
A recent Swiss case – in the Federal Supreme Court – held that senders of emails have a duty to verify receipt in almost all cases. On the facts of the case, the result may be OK: an agent for a taxpayer emailed its client to warn of a tax filing deadline; the email went astray and the client was penalized. The risk was that of the agent. (It’s not a case about the law of agency.)
The case states a general proposition that the risk of non-delivery of an email is always on the sender – because delivery is known to be not thoroughly reliable.
Would this be the law in Canada, or where you are? is that too strong a proposition? Suppose the sender could prove that the email got to the addressee’s computer but was filtered out or lost once there. When does the risk (and responsibility) shift to the addressee?
(The questions are the civil side of those I posed last week about whether a regulatory or prosecutorial body could start a proceeding by email notice, without statutory or contractual authorization. Would it be acceptable if the regulator or prosecutor checked to see if the notice of hearing – e.g. – had been received?)
Is it a situation like signatures, where the risk that a signature is forged always lies on the person relying on the signature?
Is it true that the delivery of emails less reliable than that of postal mail, or faxes? Is it sufficiently true that rules of law should be built on that proposition?