Facsimile is Dead! Long Live Email!
Facsimile, or Fax has had a long and storied history with the first chemical mechanical fax type devices being invented and patented in 1843 by Alexander Bain. However, some 157 years later, the death knolls have rung for this beloved piece of technology. By way of media statement, the Chief Registrar of the Federal Court of Malaysia, Tuan Ahmad Terrirudin, announced that as of the beginning the new decade (January 1st 2021), all correspondence with Courts throughout Malaysia will be by way of email and that facsimile will no longer be used. This is not the first attack launched against fax and fax machines. In Japan, the Minister of Administrative Reform, Tara Kono has declared a war against fax machines in the attempt to make Japan go paperless.
Fax: To slide your doc into the receiver’s inbox
Prior to the commercially available and reliable email service that we know and trust* today, the quickest and most reliable way to transfer documents, with the quality of the document intact, over large distances was by way of fax. As early as 1924, the AT&T Corporation were able to transfer pictures “by electricity” through a phone line from Cleveland, Ohio to New York City, with the quality suitable for newspaper reproduction.
With the advent of commercially available fax machines and an adoption by most major businesses in the late 70s, fax became the byword for instantaneous transfer of written or graphic information. The benefits of fax were as follows:
As mentioned, the fact the information could be transferred over great distances quickly and efficiently meant that it was a more reliable and cheaper option than postal and courier services.
2. The time stamp.
Similarly, the fax service allowed for the time stamp of documents that were being sent. For the administrative services of a business, this was a god send. No more arguments of when the document was received.
3. Knowledge of delivery
In addition and following from the above, fax allowed the sender to know if the fax was delivered. With post and some forms of courier services, you were only guaranteed to have sent the document but no idea if the document was delivered. As was a common complaint in the 60s and 70s, a lot of documents were lost in the post and fax allowed businesses to overcome this hurdle.
4. Large quantity of data
Finally, fax was not the first form of instant messaging available to businesses. The telex machine was available but it could only transfer small amounts of data. To transcribe entire documents would be extremely time consuming and in select instances, it may have been faster to physically deliver the document. Fax was the evolution of the data transfer process allowing users to send and receive large amounts of data, in some cases, up to hundreds of pages seamlessly, barring the receiver having enough paper in the tray.
As such, it is no surprise that fax was an acceptable means of service of documents in the legal field. The electronic time stamping ensured that disputes as to service were avoided and the fact it could transfer huge amounts of data quickly meant that lawyers could work to “longer” deadlines as the document itself could still be served on the last possible day, pending agreement by opposing counsel, instead of having to send it earlier to effect service.
Email: - the obvious choice
In the last 10 years, we have seen email services like Gmail and Microsoft Outlook be available to the public for commercial and personal use. This has resulted in email being an acceptable form of communication for business purposes. While this may seem like common sense now, it was only 15 years ago that businesses were sceptical about emails.
Emails also provide additional benefits that fax just cannot compete with anymore. For example:
As most businesses with a fax machine can attest, one cannot control when a fax comes in. Larger businesses may have multiple employees using the same machine and this means there is an opportunity for the document to be viewed by non-directed recipients. For example, in the medical field, many large health services, such as the Canadian Health Service still rely on fax to transfer information. And this means that for a while, until picked up by the doctor or department in charge, a patient’s confidential email is viewable to all who have access to the fax machine. Not only is this a breach of personal data protection laws, it also simply unsafe.
Emails on the other hand can be encrypted such that it is only viewable by those who have an encryption key. For legal documents, this is essential as law firms deal with very sensitive client data. Encryption allows this data to be stored safely and viewed only by those who have the authority to do so. With services such as Gmail offering encryption for free, switching to email over fax is not a big leap to make.
b. Lost in the course of business
Following on from the above point, the issue with a fax machine being easily accessible is that the faxed document may be lost in and amongst other documents in the course of the day-to-day business operations. As most fax and print machines have a single output tray, it is not impossible for fax documents to be printed amongst other printed items.
While this may seem like a hypothetical, it is only too real. In the short film Greg’s story, which is based on Greg’s tragic health scare story, Greg’s results were faxed to a specialist who failed to see the fax as it was first lost then later received but not directed to the specialist. As such, he died from lack of urgent medical attention. While the likelihood is not as extreme in the legal profession (save perhaps in a very extreme example involving the death penalty), it still shows that there is such a risk. Emails allow for this to be avoided. While you cannot ensure the person who receives the email has read and responds to the email, you can make sure delivery is done and you can request for read receipts.
Aside from providing safety and direct access to a recipient, email service allows for documents to be accessed remotely and from different locations. In the age of Covid, not having to have recipients stuck by a fax machine to receive critical information would reduce the risks of infection and allow for work to continue while people are stuck at home.
In addition, documents sent via email can later be downloaded and transported via USB without additional steps. With a fax machine, to hand the information over, one would either need physical transference or to scan the document before sending it via email to another person.
Finally, emails are more environmentally friendly. With fax, the information would need to be printed in order to be readable. This means using electricity (to run the fax machine), paper, ink and human labour (monitoring the machine). With emails, people have the choice whether to print out the information or not. With most business users used to reading information on a screen, this would reduce the need to print materials, saving electricity and paper. As such, emails are the greener choice, especially considering the legal profession is a paper intensive industry.
Is it all over for Fax?
The legal industry has always been slow to adapt to technological change. As discussed in our previous articles, there is a resistance to new technology and it is not without merit. However, now, with the courts no longer relying on fax for communication and businesses and or lay client not using fax as much or at all, the time may well have arrived for the profession to sacrifice fax at the alter of time and embrace email as the means of the future. The new media statement by the Courts is not so much as the fatal blow to fax, as many law firms have already been using emails their main method of communication, but rather the final nail in fax’s coffin.
 Circular 420/2020, Bar Council Malaysia, 28 November 2020
 Tomohiro Osaki, As the new administrative reform minister, Tara Kono declares war on fax machines, The Japan Times, 27 September 2020 https://www.japantimes.co.jp/news/2020/09/27/national/japan-taro-kono-fax-machine-hanko/ accessed 12.12.2020
 The Montreal Gazette May 20, 1924, page 10, column 3