A faxed or a pdf-emailed documents could be considered as a written document and an original document under the Law on E-transactions 2005 subject to certain qualifications. This is because:
- under the Law on E-Transactions 2005, a data message is defined to mean “information created, sent, received and stored by electronic means.” A data message is expressed in form of e-mail, fax and other similar forms. The definition and description of data message expressly include faxed or a pdf-emailed documents;
- a data message could be considered as a written document if the information contained in the data message can be accessed and used for reference when required. The Law on E-Transactions 2005 does not make clear who should have access or use of a data message in order for the data message to qualify as a written message. If a customer of a bank sends a faxed or emailed instructions to the bank, it is likely that the bank will have a system to store and keep the faxed or emailed instructions for its use and reference in the future. However, the customer of the bank may not always store and keep the faxed or emailed instructions; and
- under the Law on E-transactions 2005, a data message will have the same value as an original document if (1) the content of the data message can be accessed and used in its entirety; and (2) the content of the data message is intact since the time the data message is first created. A data message is regarded as being intact if it has not been changed except for changes due to the transmission, archiving or displaying of such data message. Accordingly, in order to use a faxed or emailed document as an original document, the relevant parties must prove that the faxed or emailed document has not been changed during the transmission from one party’s system to another party’s system. This may be difficult without certain mechanism between the relevant parties to double check the contents of the faxed or emailed document which has been received against the contents of the faxed or emailed document which has been sent.