E-statements & ESIGN Compliance
Answer by Richard Insley, BOL Guru Guru Bio
Question: We are in the process of implementing e-statements and I am concerned if the process our vendor will use to comply with ESIGN's demonstrable consent is adequate. The e-statement will be delivered to the customer via an email with a PDF attachment to their current address. Customers will enroll for e-statements on our website. During the enrollment process at the bottom of our e-statement agreement there is a box for them to click that reads "I agree to the listed terms". Further down and to the right of this is the statement "Click here to see a sample document". Our vendor does not track each customer’s request to see that sample document; however they do track the customer's acceptance of the listed terms. There is a blurb in the agreement that states by clicking the "I agree to the listed terms" you certify that you have clicked on the sample document and you are able to open, read and print the sample E-statement. Is this process enough to prove demonstrable consent under ESIGN given that we are delivering the statement via an email in a PDF attachment?
Answer: An ESIGN test send must demonstrate that there is no chance the consumer will experience a problem receiving, opening, and reading the e-documents you wish to substitute for paper documents. Unless you send a test email to the current address with an attached sample document, you have not proven that your e-delivery process will work when the time comes. It's nice to demonstrate that the customer can open a PDF document with his/her web browser, but that's not how the e-documents will be delivered. There remains the chance that the customer's email server will block the attachment or Acrobat is not installed on the customer's computer in a way that will allow his/her email client to trigger Acrobat to view the attachment. No amount of boilerplate can relieve you of the duty to conduct a live test sufficient to assure both the bank and it's customer that e-delivery will work.
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