Electronic mail nowadays constitutes one of the most common forms of communication, not only in the corporate sphere. E-mail is slowly but surely becoming the new mailbox that must be checked daily—even during vacation. he Supreme Court has so ruled, thus confirming what had been assumed until now. At which point does electronic mail delivery occur, and why is this critical moment 'M' so important? It is at this point that deadlines or time periods start to run, and it is important to keep track of them so that they do not run unnoticed. We discuss the practical issues surrounding delivery below.
What was the issue in this case?
The Supreme Court has shed more light on the question of delivery. In the litigation before the court, the claimant was a member of the company’s board of directors, who challenged the notice of his non-reappointment for another term. This notice was delivered to him by e-mail at a time when he was on vacation. The moment of receipt played a crucial role in determining the amount of severance pay— if he had been given insufficient notice of his non-election, as he sought to show, he would have been entitled to a higher severance payment.
Statutory regulation of delivery
a) Moment of Delivery
This brings us to the decisive moment for delivery. This is defined as the moment when the message is in the addressee's sphere of disposition (i.e. it is delivered to the mailbox or inbox), provided that the addressee has actually had the opportunity to become acquainted with it. That presumption refers both to the time when the message was made available to the addressee and to the place of delivery actually used by the addressee. Thus, if a message is delivered in the middle of the night or dropped in the mailbox while the person was at work, the message will be delivered only at a time when he or she had actual access to it. Furthermore, if, for example, the postal carrier informs the addressee that he/she has deposited the parcel at the post office due to his absence, the moment when the addressee reads the notice that the parcel has been deposited at the post office cannot be regarded as the moment of delivery; that moment will be the beginning of the opening hours of the post office on the following working day. Regarding the place, a letter dropped in the addressee's mailbox at his holiday cottage, for example, cannot be deemed delivered unless he is present there at the time of delivery.
It is not decisive whether recipients actually acquaint themselves with the content of the message; it suffices that they had the factual opportunity to do so. The moment of delivery cannot depend on the recipient’s willingness to read the message. If the addressee themselves obstructs the delivery, the message shall be regarded as if it had actually been delivered..
Note, however, that if a delivery address has been previously agreed, then delivery will take place regardless of whether you are present at that address (with exceptions such as unplanned hospitalisation, as described below).
In the event of a dispute, the sender proves that the mail has reached the addressee.
b) Methods of Delivery
Postal Mailbox
A letter is deemed delivered to the agreed address by being dropped into the mailbox. An exception applies where the recipient could not collect it at that precise moment, in which case delivery occurs at the first opportunity to collect it (e.g., in the morning after waking up, upon return from work, after return from hospitalization, etc.). The delivery address is deemed to be the agreed address / address of permanent residence / registered place of business. On the contrary, if not agreed otherwise, the message is usually not deĺivered if it has been sent to a location where the addressee does not habitually reside.
Specifically, where a message is sent through a postal services operator, the Civil Code provides for a presumption that the shipment is delivered on the third working day following dispatch. The list of postal service operators is available on the website of the Czech Telecommunication Office (http://www.ctu.cz). However, this presumption may be rebutted. This applies in cases where the shipment was not dispatched at all, was delivered to the wrong address, or where the recipient, for serious reasons, could not collect the shipment. Such serious impediments include, for instance, unplanned hospitalization or, naturally, death.
As for employment relationships, the law prioritizes other methods of delivery before delivery by post: the employer must first attempt, unsuccessfully, to deliver the message personally at the workplace.
When does the often feared fiction of delivery arise? In communications with public authorities, documents are generally delivered “into the recipient’s own hands.” If the document cannot be delivered (e.g., the recipient refuses to accept it, is absent), it is deposited at the authority that issued it, at the municipal office, or at the post office. After deposit, the addressee is notified that the document must be collected within ten days. Upon expiration of this period, the document is usually placed into the mailbox and delivery is deemed to have occurred (fiction of delivery). Under the Administrative Procedure Code, the fiction of delivery arises on the tenth day following notification. Its purpose is to prevent „playing possum“ – deliberate evasion of communication. However, if the addressee proves their absence or another serious reason for not collecting the document, they may apply for a declaration of the delivery’s invalidity.
The delivery of an e-mail is not conditioned upon the recipient opening the message or logging into their e-mail account. The rules concerning the time of delivery by post apply correspondingly.
This leads back to the Supreme Court’s decision, which for the first time stated that vacation does not relieve a person from the duty to check their electronic mail. Delivery cannot be rebutted by the non-collection if the recipient’s absence was planned, such as in the case of vacation or other such foreseeable reasons.
In employment relationships, the rule for valid delivery is that an employer may send electronic messages to an employee and subsequently attach certain legal consequences to such communications only if:
- the employee’s written consent with delivery by electronic means and being informed about the consequences;
- the employee providing an e-mail address that is not under the employer’s control (i.e., not a company-issued or intranet address);
- the communication being signed with a qualified electronic signature.
A document is deemed delivered on the day the employee confirms its reception. If no confirmation is made, the document is deemed delivered on the fifteenth day after dispatch.
Data Mailbox ('datová schránka')
If the addressee has a data mailbox, the general rule is that a ten-day period for collection applies. After the lapse of this period, the message is deemed delivered, regardless of whether the addressee actually acquaints themselves with its contents.
Conclusion
In light of the Supreme Court’s decision, it is necessary to monitor one’s e-mail inbox even during vacation. Although the decision pertains to electronic mailboxes, a similar rule can be inferred for postal mailboxes. Therefore, it is highly advisable to arrange for a person to check your mailbox during your absence, and despite the very purpose of vacation, also remain vigilant regarding your electronic communications.