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[1], 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[2].
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[3].
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:
1. Instantaneous
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:
a. Privacy
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[4]. 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.
c. Portability
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.
d. Environmental
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.
[1] Circular 420/2020, Bar Council
Malaysia, 28 November 2020
[2]
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
[3]
The Montreal Gazette May 20, 1924, page 10, column 3
[4] https://gregswings.ca/fttc-gregsstory/