In light of the proliferation of social networking sites, courts in different commonwealth countries have begun to allow service of legal process online via Facebook and Twitter. This is an interesting yet controversial area which requires a closer scrutiny.
A new trend - service of court documents online
Traditionally, court documents are served on litigants by personal service, ordinary post (or insertion through a letter box), registered post or through their lawyers or process agents. Substituted service, usually by way of a newspaper advertisement, may be allowed if service cannot be effected through the foregoing means.
In mid-March 2011, the Hastings County Court in East Sussex of the United Kingdom allowed a plaintiff to serve a summons on a debtor by way of substituted service via Facebook. This case is not the first of its kind. Early in December 2008, in MKM Captial Property Limited v Carmela Rita Corbo and Gordon Kinsley Maxwell Poyser (a bankrupt) (No. SC 608 of 2008), the Australian Capital Territory Supreme Court granted a default judgment and allowed it to be served onto the defendants by a private message via computer to the defendants' respective Facebook pages. Printouts of the defendants' Facebook profiles including their respective date of birth, email address and friends' list were produced. The court was satisfied that the default judgment would reasonably be expected to be brought to the defendants' attention by service via Facebook.
The Canadian and New Zealand courts followed suit. In February 2009, a Canadian court allowed service on an individual defendant by sending a copy of the Statement of Claim to the defendant's former company and by sending a notice to the defendant's Facebook page as substituted service (Knott v. Sutherland, (Feb. 5, 2009), Edmonton 0803 02267 (Alta. Q.B.M.)). In March 2009, a New Zealand court granted leave for service of court documents via Facebook on an individual defendant whose whereabouts were unknown (last known to be living in England) and who had done banking transactions online, corresponded with friends via email and had a Facebook account (Axe Market Gardens v Craig Axe (CIV: 2008-485-2676)).
A new bullet against anonymous wrongdoers on the Internet
The above decisions all dealt with defendants with known identities. In October 2009, the UK High Court took one step further to allow a plaintiff to serve an injunction against an anonymous Twitter user by sending a Twitter direct message containing a link to the injunction, which ordered the defendant to refrain from impersonating the plaintiff on Twitter and to reveal his identity and Twitter account information.
This is indeed a breakthrough - it saves the trouble of the plaintiffs applying for Norwich Pharmacal orders from the court against: (a) Twitter to reveal the relevant account user's information and IP address(es) of the postings; and (b) the relevant ISP to reveal the subscriber's identity and location of the computer.
Implications for Hong Kong
Currently, Hong Kong has no reported case on service of process via the Internet. Yet, it is possible that the Hong Kong courts may follow the trend of the other commonwealth jurisdictions to embrace new technology and accept service through social networking sites, particularly given the high penetration rate of the Internet and the large number of online social account users in Hong Kong.
This new method of substituted service makes it much easier for plaintiffs to effect service and correspondingly more difficult for defendants to evade service or hide behind the cloak of the Internet. If adopted by the Hong Kong courts, such service is likely to become popular in discrimination, harassment, defamation and intellectual property infringement cases that occur online. Service on a defendant via social networking sites is timely and cost efficient compared to the Norwich Pharmacal applications against the site operators and the ISPs. Service out of jurisdiction can be made immediate by the click of a mouse so long as such service is not contrary to the law of the country where service is to be effected (See Order 11 Rule 5(2) of the Rules of High Court).
Yet, service of court documents via online social media is not without controversy:
- To successfully obtain an order for substituted service, the court has to be satisfied that there are reasons to believe that the documents served via the online social media will come to the defendant's knowledge. However, it is sometimes difficult to show that a particular user is indeed using the social media account and to prove the reasonable probability that the court documents so served will come to the user's attention. It is unclear what sort and extent of evidence will be required to satisfy the court. To what extent would the recent postings, comments and activities via the social network account be considered? Does the court have to be, and how would it be, satisfied that the account was used by the actual user and not by a hacker or an impostor?
- The commonwealth cases show that the court documents were served by sending a private message to the Facebook or Twitter account with an attachment of that document or a link to it. There is nothing to prove that the message has indeed been sent off and has reached the defendant's user account.
- So far, the commonwealth cases involved individual defendants. Would and should different factors apply if the defendant was a company operating a Facebook account?
As of today, no legal challenge has yet been brought over service via online social media. It would be interesting to see how the Hong Kong courts will deal with such an application.