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Today, I will break down section 27 of the Electronic Communications and Transactions Act 2023 (the ECT Act), which governs when electronic communications on “information systems” are treated as received. This article picks up from last week’s article, which dealt with when an electronic communication is treated as dispatched (as opposed to sent). Notably, the legal position differs when electronic communications are sent to a designated (agreed) address, as opposed to a non-designated (unagreed) address. Parties may agree when a communication is deemed received Parties to electronic communications can agree on the time (when) electronic communications are to be treated as received (see section 27 of the ECT Act). Thus, parties to a contract may agree that an electronic contract will be treated as received (whether via email, WhatsApp, or a specialised information system) on a specific date, provided it is sent before a certain time on that date. To demonstrate the point, a contract can stipulate that a communication, including a document, is considered received on the date the addressee becomes capable of retrieving it before a certain time on that date (say 4 pm). The contract may also or further stipulate that any communication retrievable after 4 pm on any day is considered received the following day. Even further, a contract can stipulate that any communication retrievable after 4 pm on Friday is considered received the following Monday. What if there is no agreement on time? However, if there is no agreement, the Act provides that electronic communication is considered received when it becomes retrievable by the addressee at the agreed or designated address (see section 27 (1) of the ECT Act). Thus, if there is no agreement on when an electronic communication is to be treated as received, it will be treated as received when it becomes retrievable by the addressee at the address designated on the platform for that communication. Thus, a communication is treated as received if it is retrievable: (i) on a designated number via a designated instant messaging platform (such as iMessage, SMS, or WhatsApp); (ii) at a designated email address; or (iii) or some other designated specialised platform, such as a procurement platform, a court’s e-filing platform etc. The term “designated” may suggest a need for an agreement, but it is also possible that designation is based on the parties’ conduct. Thus, if an addressee has usually used [email protected] as his email address for business communications with A, he may be said to have, by conduct, designated that address as the address for communications with A. What if there is no designated platform? If there is no agreement on a time of receipt and the addressee has not designated an address for the communication, the law treats the communication as received only when the message becomes retrievable at the addressee’s electronic address and the addressee actually becomes aware of it. Both conditions must be satisfied. Ultimately, the ECT Act provides a practical framework for businesses and individuals to manage legal risk in a digital world. Knowing when an electronic message is lawfully treated as received can make the difference between compliance and a missed deadline. It is therefore important that parties think ahead and agree on clear terms to govern electronic communications.
