Hard fax facts

E-mail is cheap and convenient, albeit unreliable and untrustworthy, yet can be called upon where a business agreement or dispute exists. Are the words unreliable and untrustworthy too strong? Not at all, from both practical and legal perspectives.

There are many problems with everyday e-mail, which all stem from the fact that essentially e-mail was designed as a quick way of sending messages within a community that basically trusted its members.

Many people will recognise the acronym SMTP without knowing that it stands for Simple Mail Transport Protocol, and the key word is "simple". It was never intended to be secure, confidential or non-refutable, and all attempts to add those properties after the fact have been bolt-ons, built on shaky foundations.

Fax systems, once considered to be on the endangered species list, are still with us; and indeed fax volumes are growing. Businesses are still choosing to spend money to send a fax rather than use free e-mail, and it`s instructive to consider why that is.

One factor is that there are many canny business people who simply do not trust e-mail: they don`t have confidence that it will be delivered, unaltered, and not read by snooping eyes along the way. The facts are that e-mails are often not delivered (more often these days because they are blocked by automated content filters rather than because of system failures), can easily be manipulated and have their provenance falsified, and travel through staging servers where various administrators can view and copy them if they wish.

There are many canny business people who simply do not trust e-mail: they don`t have confidence that it will be delivered, unaltered, and not read by snooping eyes along the way.

Kevin Hurwitz, MD of AmVia

A second and increasingly important factor is that whether you choose to trust e-mail or not is not as important as the legal and compliance issues that companies face. A document sent by fax is sent and received in one point-to-point transmission. The send and receive logs that fax systems produce provide corroboration of transmission or receipt, and strong and immediate assurance that the document has been received by the other party.

Further, although it is possible to tamper with a fax received as an electronic image, the fact remains that this is not a trivial task. We have seen recently in the press how inept attempts at forging e-mail headers have landed some people in hot water, but to a competent IT professional it is not hard to do. On the other hand, manipulating a TIFF image to make undetectable changes requires far more work, and is a much more difficult undertaking.

Your ally here is noise and dirt: faxes are invariably spattered with tiny (sometimes not so tiny) imperfections and background muddiness, and the text and diagrams are distorted and grainy. These imperfections make it very tricky to cut and paste, delete or insert new data such that a forensic examination will not reveal the tampering.

The Electronic Communications and Transactions Act states that electronic communications, including fax and e-mail, have the same contractual significance as any other documents, but when a dispute over authenticity arises the documents must be given due `evidential weight`, which is defined by law as: the reliability of the manner in which the electronic evidence was generated, stored or communicated; the reliability of the manner in which the integrity of the evidence was maintained; the manner in which the originator was identified; and any other relevant factor.

When contrasting the characteristics of faxes and e-mails, it`s small wonder then that in the legal profession faxes are extensively used and are generally preferred over e-mail. In practice, a fax is convincing prima facie evidence; an e-mail is considered highly suspect unless extraordinary steps have been taken to preserve its evidential value.

The increasing popularity of fax-to-e-mail may give rise to the misconception that since the fax is now e-mail it is as open to challenge as any other e-mail, but that is not the case. The primary communication still took place across the phone line and in most cases there is still an auditable trail from receipt by a fax server to delivery to your inbox; and once there, the difficulties of tampering imperceptibly with an imaged fax are unchanged.

When it comes to serious business communications with contractual implications, the simplicity, speed and cheapness of e-mail can be costly illusions: fax is alive and well.