Must you prove the defendant opened the email?
Colombia's Supreme Court has held that notice by email does not depend on the message being opened. What is proved instead, and what opens are for.
· Written by the Notificado team.
The short answer
No. Personal notice by data message does not require proof that the defendant opened the email. The Supreme Court explained this in its ruling of 3 June 2020 (case 11001-02-03-000-2020-01025-00): notice is complete when the email is received, and tying it to opening would leave its effect to the recipient's whim.
What is proved instead
Receipt. Inciso 3 of article 8, as conditioned by C-420/2020, runs terms from when the sender receives an acknowledgement of receipt or access by the recipient can otherwise be established.
In STC16733-2022 the Supreme Court defined the acknowledgement as «confirmation that the message reached its destination», provable by any means: a voluntary acknowledgement, an automatic one, a postal company's record or the plaintiff's documents. Acceptance of the message by the recipient's server is an automated communication within the meaning of art. 20 of Ley 527 de 1999.
What opens are for
Supporting circumstantial evidence. An open or download record strengthens the proof, but has known technical limits: some mail services fetch images on their own, and others block them. There can be opens the recipient never made and reads that were never recorded.
That is why no part of Notificado's method makes notice depend on an open: it is recorded as circumstantial evidence and labelled as such in the record.
What does weaken the proof
A bare «sent» record when the defendant states under oath that the message never arrived. That is the line of STC690-2020 and paragraph 350 of C-420/2020. What makes the difference is proof that the destination server accepted the message.
Guide: personal notification under art. 8, Ley 2213 de 2022
An informative summary, not legal advice. The validity of each notification is decided by the judge hearing the case.
Read also
- Is notification by email valid?Requirements, proof and nulidad under art. 8 of Ley 2213 de 2022.
- Is certified mail mandatory?What art. 8 requires to notify, and what the Corte Suprema has held.
- Certified email: what does the law require?What the term names, and what the law requires to notify under art. 8.
- Term calculatorFrom the send date: notice complete, and the start and end of the term, in business days.
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Keep reading
- Guide: personal notification under art. 8, Ley 2213 de 2022Requirements, the sworn statement, receipt, when notice is complete and what to file.
- Nullity for defective notificationWhat the party asking must state and what the judge weighs.
- Term of the traslado de la demandaDays to answer by type of case, from the text of the CGP.
- CGP arts. 291 and 292 compared with art. 8Citación, aviso and data message: what each route requires.
- Art. 8 notification modelWhat the message and the memorial Notificado prepares contain.
- When does the CGP call for postal certified mail?The postal route of arts. 291 and 292 of the CGP, and what art. 8 of Ley 2213 de 2022 provides to notify by data message.
- Printable checklistEvery step of an article 8 notification, to tick off before filing the memorial.
- Key case lawThe Constitutional Court and Supreme Court rulings that set the rule.