Mod 0479 – Inclusion of e-mail as a valid code communicationNGN to provide a view on legal status of e-mail, a definition of what is an e-mail communication and recent changes in legislation concerning e-mail as a method of communication.

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Background

• When an e-mail is sent it passes from the sender to their e-mail exchange service, through the firewall to the internet, through the recipient’s firewall to the e-mail exchange service and then finally the recipient.

• T&Cs exist between the e-mail exchange service and sending/receiving company, but not necessarily between all services throughout the process.

• Therefore there is not contractual certainty about the surety of the e-mail travel path and performance of the systems the e-mail passes along the communication route.

• Code communications sent over the UK Link IX system are different as the lines are dedicated from the GTs to each Shipper point of receipt.

• There are no particular statutory provisions on e-mail receipt. Commercial practice where e-mails are to be used in contracts is that the contract deems a particular period after which the e-mail is deemed received and is therefore applicable.

• This is what happened in the electricity sector under Mod P113 and is what we are seeking to replicate with UNC Mod 0479.

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The legal status of e-mail in the UNC

• Use of e-mail would be classed as a notice.

• ‘UNC General Terms Section B – General’ covers notices by delivery, post and facsimile but does not include e-mail (non-UK Link system).

• We will add the relevant references to e-mail in this section, namely in 5.2.2, 5.2.3 and insert 5.2.5 (d) and 5.2.8 (see below).

• This will grant an e-mail the legal status of being a code communication.

When an e-mail is deemed received

• There is no case law or legislation on the deemed receipt of e-mails.

• This is why we are proposing to include the ‘deeming’ rule within the UNC TPD, based on the same rule in electricity Mod P113, ‘E-mail Communications under the Code’.

− UNC GENERAL TERMS B5.2.5 (d) - in the case of e-mail, shall be deemed to have been received one hour after being sent

− UNC GENERAL TERMS B5.2.8 - If the time at which any notice or communication sent by e-mail is deemed to have been received falls after 1700 hours on a day, the notice or communication shall be deemed to have been received at the start of the next Business Day.

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Scenarios

• User A sends an e-mail to User B, but User A’s e-mail system goes down and the e-mail does not send.

− E-MAIL IS NOT DEEMED TO HAVE BEEN SENT. The e-mail never passed User A’s firewall and so is never considered ‘sent’. User A can still use conventional (post/fax) methods to contact User B.

• User A sends an e-mail to User B, but User B’s e-mail system has gone down or the mailbox is full and the e-mail bounces back.

− E-MAIL IS DEEMED TO HAVE BEEN SENT. The e-mail passed User A’s firewall and is therefore deemed to have been sent. It is the responsibility of each party to maintain their own systems (UNC TPD U2.2) and it follows the same principle as electricity Mod P113. User A should follow best practice and use conventional (post/fax) methods to contact User B, informing them of and re-sending the bounced e-mail if it hasn’t been queued in User B’s system.

• User A sends an e-mail to User B, but User B no longer uses this e-mail address and has not informed User A.

− E-MAIL IS DEEMED TO HAVE BEEN SENT. As above, they can re-send the e-mail once the correct e-mail address has been provided.

• There is a dispute between User A and User B over when an e-mail is deemed sent.

− As it is the responsibility of each party to maintain their systems (UNC TPD U2.2) they should also be able to access their servers to pull out the relevant information as to when the e-mail left User A’s servers and was deemed sent and when it was received. It is up to each party to preserve this evidence similar to preserving evidence of posting letters and sending a fax.