Electronic communication has become dominant. It has disrupted mainstream communication like sending letters through the post.
There are many forms of electronic communication and they keep coming up. A few years ago, it was not possible to share images or videos through the mobile phone. This has changed because of WhatsApp.
It was not possible to have a verbal communication without physical presence. Through Skype, meetings and video calls are now possible.
These innovations have made communication faster, cheaper where the only cost is good internet connection.
These disruptions have created unprecedented changes that the law in Kenya has attempted to address but gaps remain.
It is difficult to legislate frequent changes in innovation as the lawmaking is a long and expensive process. However, some recent court judgments are setting practical precedents.
One of the most common questions I get about electronic communication is if WhatsApp and e-mail communications are legally recognised as official records, especially in contracts or employment.
For example, if one serves their employer with a resignation letter via WhatsApp, is this legally recognised?
These changes call for drafting of practical contracts.
In the notices or communications clauses of a contract, if WhatsApp and e-mails are common, then it makes sense to include them in the contract as the official communication.
Recently, the High Court in Kenya allowed an application to serve a Kenyan blogger via WhatsApp and e-mail. This case gives guidance on recognition of e-communication in official documents.
The regulatory framework on electronic communication includes the Evidence Act and the Information and Communications Act.
Electronic records are generally admissible so long as they meet the set criteria provided for in the Evidence Act, including provision of a certificate by a qualified person.
The Evidence Act provides a very high standard that ought to be met before an electronic signature is recognised. For example, an electronic signature certificate must be produced by registered persons.
Despite the high standard placed by the Evidence Act, the Information and Communication Act embraces use of electronic signatures as the commission is obligated to remove uncertainties about electronic signatures. The Commission is mandated to lead to increased electronic commerce in Kenya by increasing the usage of electronic signatures.
In my opinion this provision somewhat contradicts the high standard in the Evidence Act that says an electronic agreement is binding once parties affix electronic signatures while the communication laws provide that a contract can be implied by the content of electronic communication such e-mails making and offer and acceptance.
Therefore, this calls for caution in electronic communication and a balance between over legislating and allowing innovation.