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#1739111 - 09/07/12 06:57 PM Re: Demonstrable Consent [Re: JBanker28]
Kathleen O. Blanchard Offline

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Kathleen O. Blanchard
Joined: Dec 2000
Posts: 21,277
If they have to open and read the pdf document and somehow following through shows they read it (i.e., the pdf contained the instructions to continue), you have tested their ability to receive, open and read a pdf.

If you just attached a pdf and in no way can demonstrate that they opened and read it, all you proved was your ability to email a pdf.
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eBanking / Technology
#1739197 - 09/07/12 08:41 PM Re: Demonstrable Consent [Re: JBanker28]
Richard Insley Offline
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Richard Insley
Joined: Oct 2000
Posts: 9,759
Toano, VA
Bob- You have to be able to use three verbs successfully in order to make a compelling argument: disclose, declare, and demonstrate.

Disclosing the pre-consent information is very straightforward and easy to do. You either cover all the points in Section 101(c)(1) or you don't.

Getting the customer to declare (pursuant to Section 101(c)(1)(A)) his/her "affirmative consent" to receive e-documents instead of paper is also fairly straightforward.

The tough nut, however, is setting up the steps necessary for the customer to demonstrate successful use of your e-delivery system in a way that satisfies Section 101(c)(1)(C)(ii). Consumer responses (stated or implied) such as "I got your test document, opened it, and everything worked great" amount to a declaration, not a demonstration. There's no evidence of success. If the test document contains something like follow-through instructions or a PIN the consumer must return to you, that is evidence of success, i.e., a demonstration.
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#1744924 - 09/27/12 07:02 PM Re: Demonstrable Consent [Re: Richard Insley]
Bob The Banker Offline
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Bob The Banker
Joined: May 2010
Posts: 958
Quote:
(3) EFFECT OF FAILURE TO OBTAIN ELECTRONIC CONSENT
OR CONFIRMATION OF CONSENT.—The legal effectiveness,
validity, or enforceability of any contract executed by a consumer
shall not be denied solely because of the failure to
obtain electronic consent or confirmation of consent by that
consumer in accordance with paragraph (1)(C)(ii).
Quote:
(1)(C)(ii) consents electronically, or confirms his or her
consent electronically, in a manner that reasonably
demonstrates that the consumer can access information
in the electronic form that will be used to provide
the information that is the subject of the consent;
and

This appears to greatly lessen the risk of not having such a lock-tite undeniable demonstration by the consumer...

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#1745076 - 09/28/12 12:06 AM Re: Demonstrable Consent [Re: JBanker28]
Richard Insley Offline
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Richard Insley
Joined: Oct 2000
Posts: 9,759
Toano, VA
That provision does not apply to the delivery of federal disclosure documents, only to the validity of contracts. Take, for example, the case where a credit card is opened online with an electronic account agreement and electronic TIL disclosures. Borrower gets into financial trouble. Borrower's attorney determines that consent did not comply with Section 101(c)(1)(C)(ii) & claims that contract is invalid and seeks TIL civil penalties for non-disclosure. The lender could use Section 101(c)(3), cited above, to defend the enforceability of the credit card agreement, but the TIL violations would stick.
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...gone fishing.

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#1906146 - 03/17/14 09:10 PM Re: Demonstrable Consent [Re: JBanker28]
happyauditor Offline
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happyauditor
Joined: Nov 2004
Posts: 802
NY
A year and a half later...any cases or banks cited for not having a good "demonstrable consent" process? I am having a hard time convincing the powers that be what is needed.
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* My opinion is not necessarily that of my employer.

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