This article discusses various jurisdictions’ position on substituted service through social media and, in particular, the Singapore position through David Ian Andrew Storey v Planet Arkadia Pte Ltd and others [2016] SGHCR 7 (“David Storey”). It also evaluates the growing role and potential risks of such electronic means in carrying out an essential Court procedure.
Introduction
Service of the writ is key to notifying a defendant of the suit. Correspondingly, Court procedure in Singapore prescribes that service be effected personally1 to give due consideration to service of the writ, but also provides for substituted service which includes “electronic means”.
a. The Court’s discretion to order service of writ through substituted service
Substituted service is typically sought and ordered when the plaintiff has tried, but is unable to personally serve the writ on the defendant. It is undoubtedly important for a defendant to be appropriately notified when Court proceedings have been commenced against him. However, this must be balanced with the need to ensure that a plaintiff is not prevented from obtaining a just remedy simply because he cannot locate the defendant to effect personal service. The latter consideration is crucial, especially when a defendant is intentionally evading service.
The Court's discretion to order substituted service is founded in Order 62, rule 5 of the Singapore Rules of Court:
(1) If, in the case of any document which by virtue of any provision of 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 136 for substituted service of that document.
(2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 137 stating the facts on which the application is founded.
(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.
(emphasis added)
The rules are clear that before any order for substituted service can be obtained, the Court must be persuaded that it is impracticable for the plaintiff to serve that document personally on a person against whom substituted service is sought. Once that hurdle is overcome, and the order for substituted service is obtained, service is deemed effected “by taking such steps as the Court may direct to bring the document to the notice of the person to be served”.
It is worth noting that as long as the steps are complied with, it is unnecessary to show that the person to be served had actually received notice of the proceedings. As such, before an order of substituted service is granted, the Court should be convinced that the method of substituted service being sought is likely to bring the proceedings to the attention of the person to be served.
b. Traditional forms of substituted service and procedures to observe
The forms of substituted service as provided under Order 62, rule 6, include the following:
(i) by leaving the document at the proper address of the person to be served;
(ii) by post;
(iii) by fax;
(iv) in such other manner as may be agreed between the party serving and the party to be served; or
(v) in such other manner as the Court may direct.
In addition, to ensure that plaintiffs are not merely using substituted service as a backdoor and to avoid effecting personal service, additional key procedures to observe are set out in the Supreme Court Practice Directions2 as follows:
(i) In any application for substituted service, the applicant should persuade the Court that the proposed mode of substituted service will probably be effectual in bringing the document in question to the notice of the person to be served.
(ii) Two reasonable attempts at personal service should be made before an application for an order for substituted service is filed. In an application for substituted service, the applicant shall demonstrate by way of affidavit why he or she believes that the attempts at service made were reasonable.
(iii) The applicant should, where appropriate, also consider other modes of substituted service, such as AR registered post or electronic means (including electronic mail or Internet transmission) in addition to, or in substitution of, substituted service by posting on doors or gates of residential and business premises.
(iv) If substituted service is by electronic mail, it has to be shown that the electronic mail account to which the document will be sent belongs to the person to be served and that it is currently active.
(v) An application for substituted service by advertisement (in one issue of The Straits Times if the person to be served is literate in English, or one issue of The Straits Times and one issue of one of the main non-English language newspapers where his language literacy is unknown) should only be considered as a last resort and should contain evidence that the person to be served is literate in the language of the newspaper in which the advertisement will be placed.
In particular, the above directions stipulate that any applicant for substituted service must show that at least two attempts to personally serve the defendant were made, and that substituted service would achieve the overarching aim of bringing the document to the defendant's notice.
c. Electronic means of substituted service
Given recent developments in technology and online communication devices, traditional methods such as posting a document or leaving a document at a place of the last residence may no longer be the most effective means to bring the originating process to the attention of a potential defendant.
To facilitate the aim of notifying the defendant, Order 62 rule 5(4) was introduced in 2011 by the Rules of Court (Amendment No 4) and Rules of Court 2011 (S 513/2011) to expressly direct the Court's consideration of the use of electronic means as a possible avenue of effective substituted service.
In using the broad term “electronic means”, as noted by the learned High Court Assistant Registrar Zhuang Wenxiong in David Storey at [8], “It made eminent 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 or applications were permissible and which were not — details which would be left to the Court of the day.”3 Further, as the Assistant Registrar noted, the cornerstone of substituted service is efficacy at bringing notice and the Court must be open to substituted service through electronic means other than e-mails.4
However, there were no prior reported Singapore judgments on substituted service through social media and internet message boards.
Position in Singapore
The plaintiff in David Storey brought a suit against three defendants for, amongst other things, copyright infringement, breach of contract and conspiracy. The second defendant, David Michael Dobson, is the managing director of the first defendant company, Planet Arkadia Pte Ltd.
The plaintiff had obtained leave to serve the writ outside jurisdiction and attempted personal service on multiple occasions at the known addresses of the second defendant in Australia. However, the plaintiff was unable to effect personal service on the second defendant and subsequently applied for leave to effect substituted service through social media accounts and an internet message board (the “Substituted Service Application”).
In the Substituted Service Application, the plaintiff adduced evidence that the second defendant:
(i) operated two e-mail accounts;
(ii) owned and recently used a Skype account and had used this to hold a previous conversation with the first defendant company;
(iii) owned and recently used a Facebook account which belonged to one “David Dobson”; and
(iv) owned and used an internet message board administrator account “David | Arkadia” on the domain arkadiaforum.com, a forum for the virtual inhabitants of the first defendant's gaming platform.
The plaintiff showed that the Facebook and arkadiaforum.com accounts’ profile pictures were identical, and that the Skype account's profile picture was a different picture of the same person. The plaintiff also showed that these platforms were recently used where a video was shared and photos were added through the Facebook account, while the Skype and arkadiaforum.com accounts showed that the second defendant was very recently online.
The Court considered the position in various jurisdictions and held that in Singapore, substituted service is permissible through social media and the internet message board, where these electronic platforms are owned and in recent use by the defendant.
The Court considered the following grounds in ordering substituted service through social media and the online forum:
(i) The language of Order 62 rule 5 of the Singapore Rules of Court is wide enough to encompass service through Skype, Facebook and internet message boards, which constitute “electronic means” as the Court may specify;
(ii) The plaintiff successfully showed the impracticability of personal service, which is a prerequisite for substituted service;
(iii) The proposed methods of service would in all reasonable probability, if not certainty, be effective to bring knowledge of the writ to the second defendant; and
(iv) There were cases in Australia and Canada where substituted service through electronic means other than e-mail was allowed.5
The Singapore Court also clarified that “electronic means” would include WhatsApp and other smartphone messaging platforms linked to mobile phone numbers, which could be used to send PDF attachments.6
However, the Court also considered arguments against allowing substituted service through electronic means apart from e-mail, where such means may not be effective in bringing notice to the defendant. Overall, the Court held that this fear should not be overblown and recognised that the only completely certain way of bringing notice is actual physical service.7 For example, posting on the front door may not be effective because an owner is not habitually resident at that particular property, or he has moved out in the interim; or a mischievous neighbour has detached the notice. Similarly, advertising in a national newspaper may not be effective because the person to be served is not in the habit of reading that particular newspaper; and even if he does, he may not read the notice section of that newspaper.
Nonetheless, the Court held that such risks may be managed with the following requirements:
(i) Ordering electronic service to be accompanied by either posting on the front door or AR registered post. Such service should only be dispensed with if the address of the person to be served is attested to be unknown or if there is proof that the person no longer owns or is resident at a known address;
(ii) Proof that the electronic platform in question is owned by the person to be served; and
(iii) Proof that the electronic platform in question was recently used by the person to be served.
The Position in Foreign Jurisdictions Regarding Use of Social Media to Effect Substituted Service
Whilst there are arguments that the use of electronic means to effect service of legal process may detract from the formality of personal service and the usual legal process, Singapore is not the only country that has adopted such a practice.
a. Position in England
The English Courts have permitted general service of process. In Blaney v Persons Unknown, Donal Blaney, a known solicitor and blogger, discovered that he was being impersonated on Twitter by an anonymous microblogger who was using Blaney’s username and photograph.
In order to seek Twitter’s disclosure of the impersonator’s identity, Blaney could have directly contacted Twitter to resolve the issue or commence the US equivalent of Norwich Pharmacal proceedings. However, in order to avoid the costs and lengthy cross-border litigation, Blaney applied for an injunctive relief before the English High Court, which permitted service of the order for injunction via Twitter in view of the impersonator's anonymity.
b. Position in Australia
In Citigroup Pty Ltd v Weerakoon [2008] QDC 17, the applicant applied for substituted service either to a PO Box where the defendant had credit card statements sent or via a sealed copy of the claim emailed to the defendant’s Facebook page.
The Court found that personal service was impracticable, and ordered the plaintiff to post the writ to the PO Box but rejected substituted service by email to the defendant’s Facebook page. The Court held that anyone could create a false Facebook page and some of the Facebook page's information did not satisfy the Court that the defendant had created the Facebook page. The Court therefore refused such substituted service since it was uncertain whether the person who created and owned the Facebook page was the defendant.
Conversely, in MKM Capital Pty Ltd v Corbo & Poyser (Supreme Court (ACT), 12 December 2008, unrep.) (“MKM Capital”), the Court ordered that the Court papers be sent to the defendants’ e-mail addresses and that a private message be sent via computer to the defendants’ Facebook page informing them of the entry and terms of the default judgment. Here, the plaintiff showed that the Facebook profiles were those of the defendants because MKM cross-referenced the dates of birth and the e-mail addresses of the accounts with the defendants’ details and the two Facebook profiles were linked as 'friends'.
Likewise, in Byrne & Howard [2010] FMCAfam 509, the Court allowed substituted service via private message on the defendant's Facebook page. The Court was satisfied that the plaintiff had done as much as possible to conventionally bring the proceedings to the defendant's attention. Crucially, the defendant was shown to be a regular Facebook user, whereby the photograph on the Facebook profile was identified as that of the defendant. Further, there was an electronic receipt of delivery to the defendant’s Facebook account and the defendant took down his Facebook page following the attempted service on Facebook.
c. Position in New Zealand
In Axe Market Gardens v Axe (High Court (New Zealand), 16 March 2009, CIV: 2008-845-2676, the New Zealand High Court followed the Australian position and ordered substituted service via Facebook on an overseas defendant.
Here, the plaintiff company had problems finding and serving the defendant where the defendant was in UK without an exact known location. While newspaper advertisements would be probably ineffective, the defendant had corresponded through e-mail and was known to have a Facebook account. As such, the High Court ordered service via Facebook to prevent the defendant from evading service and frustrating proceedings.
d. Position in South Africa
In CMC Woodworking Machinery (Pty) Ltd v Pieter Odendall Kitchens [2012] ZAKZDHC 44, the defendant’s attorney on record discharged himself and failed to provide the plaintiff with an alternative address to notify the counterparties. Both sides had exchanged pleadings and were waiting for a trial date. Further, all the plaintiff’s ensuing attempts to serve the defendant proved unsuccessful and the plaintiff applied for substituted service on the defendant’s personal Facebook page.
The Court considered the recent amendment to the Uniform Court Rules which allowed litigants to serve Court documents by e-mail or fax and emphasized that each application must be decided on its own merits and on the kind of document to be served. Further, the Court recognised that while Facebook is primarily used as a social network, this particular network could be used for other useful functions such as tracking individuals as well as to obtain essential information. As such, the Court eventually ordered that the applicant effect service through a personal Facebook message and that the notice be published in a local newspaper should the defendant lack access to electronic communication devices.
The abovementioned cases demonstrate that when sufficient care is taken to identify the appropriate individual to be served, the various Courts have recognised that electronic means, and in particular social media, can be an invaluable tool for a plaintiff to effect service. Likewise, such tools may prevent a defendant from evading service and potentially frustrating a plaintiff from commencing his claim.
Safeguards for Consideration
a. Risk of trivialising proceedings and not actually effecting service
Whilst not strictly authoritative, the Public Consultation Paper released by the Singapore Supreme Court on the “Use and Impact of Social Media in Litigation in August 2010”8 also recommends that social media may be used for service of Court documents and substituted service. The Consultation Paper also recognises that social media “may even be more effective than the traditional modes of substituted service such as posting at the Supreme Court’s notice board or advertisement in the daily press”.
b. Considerations of privacy or defamation
Further to the general concerns raised in the Public Consultation Paper, there should be considerations of privacy. In MKM Capital, the Court considered the issue of privacy. While there is no common law tort of breach of privacy and there has not yet been a legislatively created cause of action in Australia, there were concerns that an open message on Facebook could be problematic: the information provided to the Court could be wrong, and the defendant may have been out of jurisdiction. However, as the judgment in David Storey shows, this concern can be addressed by effecting service through the private messaging functions of a social media platform.
c. Substituted service cannot be used to overcome limitations on jurisdiction
The Singapore Court’s position is clear that substituted service through social media would be improper if used to overcome limitations on jurisdiction. The Court in David Storey cautioned that substituted service cannot circumvent the general rule that the plaintiff must first obtain leave to serve the writ outside jurisdiction and show that such personal service is impracticable. Otherwise, such substituted service may be challenged on the basis that it contravenes the foreign jurisdiction’s law, or that the substituted service was not effected in accordance with the order granting leave for substituted service.
Similarly, the District Court of New South Wales’ decision in Motherships Music Pty Ltd v Ayre [2012] NSWDC 42; 14 DCLR (NSW) was overturned in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268. The District Court had ordered substituted service on Flo Rida, a US-based plaintiff, through Facebook, but the Court of Appeal overturned the judgment since the legislature had not granted the District Court jurisdiction based on personal service of its process outside Australia and had “carefully confined” the scope of the Supreme Court’s jurisdiction.
Conclusion
Ultimately, the Singapore Courts retain discretion under the Rules of Court in considering all facts of the application for substituted service. With David Storey, it is now clear that the Singapore Courts have accepted the use of social media accounts to effect service, but remain cautious against its frivolous or improper use to effect service. Above all, applicants for substituted service must convince the Singapore Courts that the use of social media to effect substituted service will likely notify the defendant of the proceedings, so that the defendant is not denied the full opportunity to defend himself.
► Cheah Yew Kuin
Local Principal
Baker & McKenzie.Wong & Leow
► Faith Lim
Associate
Baker & McKenzie.Wong & Leow
Notes
1 Supreme Court of Judicature Act (Cap 332, Section 80), Singapore Rules of Court (Rev Ed 2014), Order 62, Rule 5.
2 Supreme Court Practice Directions, paragraph [33] and State Courts Practice Directions, paragraph [12].
3 http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/18464-storey-david-ian-andrew-v-planet-arkadia-pte-ltd-and-others at [8].
4 Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016] SGHCR 7 at [9].
5 David Storey at [7] to [11].
6 http://www.independent.co.uk/life-style/gadgets-and-tech/news/whatsapp-new-update-ios-android-photo-sharing-pdf-change-background-a6924821.html, accessed on 17 May 2016).
7 David Storey at [13].
