30 September 2016
Ashley Tan explores the service of legal process in the digital realm.
The popularity of social media sites such as Facebook, Twitter, Internet message boards and Instagram have made them an essential part of our daily lives. This article examines some cases where the courts in foreign jurisdictions have embraced social media as a means to effect service of legal documents.
The provision governing substituted service in Singapore is Order 62 rule 5 of the Rules of Court (Cap 322, R5, 2014 Rev Ed), in particular, Order 62 rules 5(3) and 5(4), which state that:
“(3) Substituted service of a document, in relation to which an order is made under this Rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.
(4) For the purposes of paragraph (3), the steps which the Court may direct to be taken for substituted service of a document to be effected include the use of such electronic means (including electronic mail or Internet transmission) as the Court may specify.”
In Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others  SGHR 7, the plaintiff obtained leave to serve the writ on the defendant personally in Australia but was unable to do so. The plaintiff thereafter sought an order for substituted service. The Assistant Registrar of the Singapore High Court granted an order for substituted service of the cause papers on the defendant through Skype, Facebook and Internet message boards. The reasons of the Assistant Registrar are as follows:
- The “language of Order 62 Rule 5 is wide enough to encompass service through Skype, Facebook and internet message boards”. The use of the expression “including” indicates that electronic mail and internet transmission are not meant to be exhaustive examples of service by electronic means.
- The Rules Committee cannot foretell exactly which electronic platform would be in vogue. “Users that were using MSN Messenger and Friendster in the past would today be using Skype and Facebook”. It made sense for the Rules Committee to merely state that substituted service could be effected electronically, but without descending into the details as to which platforms of the applications were permissible and which were not.
- The impracticability of personal service is a prerequisite for substituted service; flowing from this the proposed method of service must in all reasonable probability, if not certainty, be effective to bring knowledge of the writ to the defendant.
- Foreign case law has allowed substituted service through electronic means other than email.
- The Supreme Court of Singapore had in a consultation paper, “Use and Impact of Social Media in Litigation”, which concluded that substituted service is the most appropriate manner of engaging social media and there is no reason why substituted service by social media should not be considered as it is permissible under the laws of Singapore.
AUSTRALIA CAPITAL TERRITORY, AUSTRALIA
Rule 6460(3) of the Court Procedures Rules 2006 (Australian Capital Territory) provides that a Court can make an order for substituted service if it is satisfied that:
(1) It is impracticable, for any reason, for the document to be served in the authorised way; and
(2) The alternative way is reasonably likely to bring the document to the attention of the person to be served.
Substituted service through Facebook was permitted in MKM Capital Pty Ltd v Corbo & Poyser. In this case the defendants had failed to keep up with repayments on a loan from the plaintiff and did not appear in Court to defend the action. The plaintiff then applied to the Supreme Court Judge for an order to serve the default judgment on the defendants by substituted service.
The plaintiff led evidence to show that service in the authorised way would be impracticable and submitted that an alternative means of service by Facebook would bring the documents to the defendant’s attention. In particular, the plaintiff produced evidence which showed that the dates of birth and email addresses displayed on the Facebook profiles matched those of the two defendants and the “friend” list on the Facebook profiles showed that the defendants were friends with each other.
On the basis of this evidence, the ACT Supreme Court concluded that it was reasonably likely that the document would be brought to the defendants’ attention and ordered the default judgment to be served by substituted service by (i) leaving a sealed copy at their last known address; (ii) sending a copy to a specified email address; and (iii) sending a private message to the defendants’ respective Facebook pages to inform them of the entry and terms of the judgment.1
Rule 4-4(1) of the Supreme Court Civil Rules (“SCCR”), inter alia, allows the court to make an order for service by an alternate method if it is impracticable to serve a document by personal service or if the person to be served by personal service cannot be found after a diligent search or is evading service.
In Burke v John Doe  BCSC 964, the plaintiff sought an order for substituted service in accordance with Rule 4-4(1) of the SCCR on seven defendants who had published defamatory statements on various Internet message boards. The plaintiff suggested that a private notification be sent to the message board account of the defendants, informing them that they had been named as defendants in the plaintiff’s defamation action and that they could access the notice of civil claim and a copy of the substituted service order at a dedicated page on the website of the plaintiff’s lawyers.
The Supreme Court granted the order as personal service on the defendants was impracticable as there were no cost-effective means of discovering their location. In addition, even if their email addresses were obtained through internet service provider records, there was no certainty that those addresses would be current. Furthermore, “it was reasonably likely, or probable, that notice of the proceedings will come to the attention” of the defendants by the proposed method as the defendants “regularly log into the very accounts on which they posted the allegedly defamatory statements and use message boards and the Internet as a regular means of communication.”
Civil Procedure Rule 6.15 provides that the Court may make an order permitting service by an alternative method or at an alternative place where it appears there is “good reason” to authorise that service.
In 2009, a Twitter user impersonated Mr Blaney, a political blogger, on Twitter. Mr Blaney obtained an injunction against the impersonator. Given that the Twitter user was anonymous, the High Court granted an order for the injunction to be served on the impersonator through Twitter.2
In a High Court case brought by AKO Capital LLP and Master Fund Limited against three defendants, namely, TFS Derivatives (“TFS”), Fabio De Biase, and Anjam Ahmad, the plaintiffs claimed that TFS had significantly overcharged commission and sought to recover funds from TFS. However, TFS denied the plaintiffs’ allegations and contended that if TFS was liable, it should be able to claim some of the funds from Ahmad and De Biase.
TFS served its claim on De Biase at his last known address but sought an order from the Court to serve him through Facebook as there were doubts as to whether De Biase still lived there. The High Court gave permission for the claim to be served through Facebook as the High Court was satisfied that the Facebook account belonged to De Biase and that he was in the habit of checking it.3
Order 62 rule 5 of the Malaysian Rules of Court 2012 provides for substituted service of legal documents:
“5. Substituted service (O. 62 r. 5)
(1) If, in the case of any document which in accordance with these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 133 for substituted service of that document.
(2) An application for an order for substituted service shall be made by notice of application supported by an affidavit in Form 134 stating the facts on which the application is founded.
(3) A substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.”
There are currently no reported Malaysian cases where the court has allowed substituted service to be effected by social media. As seen from the cases discussed above, the courts in the United Kingdom, the Australian Capital Territory and Canada have allowed court documents to be served through social media notwithstanding the absence of an express provision in the procedural rules of the respective jurisdictions that allows this method of substituted service.
Given that the objective of substituted service is to draw the attention of a party to the fact that legal proceedings have been initiated against him, it is submitted that Order 62 rule 5(3) of the Rules of Court 2012 can be given a wide interpretation to allow substituted service by social media if the applicant is able to satisfy the Court that service by such means is the most likely method of drawing the attention of a party to the existence of the proceedings.