Electronic Mail Requires Consent And Cicero’s Guide To Electioneering

by Allen Matkins

Even before the advent of the personal computer, people were talking about electronic mail.  See this March 1973 issue of Popular Science.  They weren’t discussing e-mail, but facsimile transmission.  Although people still send documents by facsimile, other forms of electronic mail have been developed and proven even more popular. More than three decades were to pass, however, before the legislature comprehensively addressed electronic communications in the Corporations Code.  See my article, Mr. Watson – Come Here!  New Rules for Electronic Communications by and to California Corporations,  20 CEB California Bus. L. Prac. 4 (Fall 2005)

Corporations Code Section 601(b) now expressly authorizes notice of shareholder meetings by “electronic transmission by the corporation”.  While this appears to authorize notice by e-mail, it should not be assumed that notice by e-mail or other forms of electronic transmission will be valid in every case. Section 20 of the Corporations Code defines “electronic transmission by the corporation” to include electronic mail but adds the following two conditions:

  • The recipient must have provided an unrevoked consent to the use of electronic transmission for communications under or pursuant to the Corporations Code; and
  • The electronic transmission must create a record that is capable of retention, retrieval, and review, and that may thereafter be rendered into clearly legible tangible form.
The Corporations Code adds further conditions when the recipient is a natural person and the transmission is received in the capacity of a shareholder (and not an officer or director).  In those cases, the shareholder’s consent must be preceded by, or include, a clear written statement to the recipient as to
  • Any right of the recipient to have the record provided or made available on paper or in nonelectronic form,
  • Whether the consent applies only to that transmission, to specified categories of communications, or to all communications from the corporation, and
  • The procedures the recipient must use to withdraw consent.

Cicero’s Guide to Political Campaigning

This weekend, my daughter and I attended a lecture at the Getty Villa given by Professor Philip Freeman on how to win an election.  He wasn’t talking about the upcoming presidential contest, but the consular election in Rome in 64 B.C.E.  It was in that year, the great Roman lawyer and orator Marcus Tullius Cicero ran for one of the two consul positions.  As a novus homo (literally, new man) from outside of Rome, Marcus faced a tough election fight. Marcus’ brother, Quintus, decided to put stilum to tabellam and wrote  ”Commentariolum Petitiones”  (Brief Commentary on Elections).  Professor Freeman has translated this fraternal missive and entitled it “How to Win an Election”.  Although written more than two millenia ago, the book is remarkably relevant.  For example, Quintus opines that there are three things that are sure to lead to votes: favors, hope and personal attachment. Professor Freeman’s translation is not literal but it makes the book more accessible to those who don’t read Latin.  For those who do, however, the publisher (Princeton University Press) includes the original Latin.  In a cheeky jibe at the Harvard University Press, the book is published with the familiar red cover of the Loeb Classical Library with the cover page printed askew (Loeb publishes bilingual editions of Greek (green) and Latin (red) literature).  After Professor Freeman’s talk, we were able to make it to the final lecture of the Twenty-Fourth Annual UCLA Indo-European Conference (““Initial ‘Jod’ in Greek and the Etymology of Gk. ἵππος ‘horse’”).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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