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Business emails: Legal matters (Part 1)



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By Colin Porter

The digital age is clearly upon us. The days when every bit of correspondence between two parties could be found on paper are over. As emails fly back and forth between your business and clients, partners, friends and family, it’s easy to forget one thing: emails are often used as evidence in legal proceedings.

I asked for input from a colleague of mine, Brendan Tomlinson, Special Counsel, Technology and Intellectual Property at Ash Street, and was downright surprised to learn the amount of factors that one should be aware of when corresponding via email – especially when it comes to business.

All it takes is one subpoena. One subpoena has the power to have your business producing any and all the correspondence that falls within the parameters of the order.

Subject to any legal means of resisting such a subpoena, for example, where legal privilege applies to certain documents, the term ‘correspondence’ could cover any communication sent via post, email, memos or facsimiles. And all of this can be used in legal proceedings.

Common legal disputes in which emails surface as evidence are those associated with contracts and agreements. Brendan told me that an agreement made via email, without one’s handwritten signature, is still valid as a type of legal document – so long as the key elements of a contract are included.

“Generally, for a contract to be formed there must be an offer, clear acceptance of that offer and consideration in exchange for performance of the offer,” Brendan said.

“It is generally preferable to negotiate and sign a contract, particularly in a complex supply, sale or purchase arrangement. However, without this a contract can still be formed if the intention of the parties are clear.”

Kelly Marshall, Associate, Technology and Intellectual Property, also at Ash Street, gave me the following example of an email exchange in which the offer, acceptance and consideration elements are clearly represented:

“Hi Franc. I heard you were looking for a vinyl version of Marvin Gaye’s ‘Got to Give it Up’. Well I happen to be selling mine. She’s in mint condition, 12 inch vinyl, released 1977 – no blurred lines on this one! Here’s a couple of photos. Let me know if you’re keen. Ishar.”

“Ishar – MATE. Sounds perfect and no scratches. How much? Franc”

“Hi Franc. Well, they’re going for about $100 bucks these days, but how about you give me $70 and it’s a done deal? Ishar”

“Consider her sold. I’ll bring around the money on Monday when I pick her up. Franc”

“Done and done. See you Monday. Ishar”

It ultimately depends on the type of contract, but emails like the one above have been known to hold ground in legal proceedings.

The legal dilemmas that can arise from email correspondence are as varied as they are complicated, but there are a few points Brendan suggests to keep an eye on:

– Ensure you are sending the email to the correct email address and ensure it is legitimate.

– If sending an email with advertising or promotional elements, ensure it complies with the Spam Act 2003 (Cth).

– Avoid misleading or deceptive statements, which can have series adverse consequences (including under section 18 of Australian Consumer Law).

Of course, these are all suggestions and pointers; contact a lawyer for legal advice to ensure you are on the right path.

Be sure to check back next week, when I – along with Brendan’s help – will be looking at whether or not that legal disclaimer often placed at the bottom of emails provides any sort of protection and what legal cases can serve as persuasive examples.

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About the Author:

Colin Porter is the publisher of Dynamic Business and the founder and MD of credit reporting bureau, CreditorWatch. He has over 20 years experience as a business owner, specialising in general small/medium business issues, cashflow, credit management and online business. Follow CreditorWatch on Facebook, Twitter and LinkedIn.