Professional briefing - The Journal Online

privacy settings, it might be possible to
tell who an individual’s Facebook
friends are. In this case, the friends list
of both defendants was visible.
The lawyers sought permission in
the Australian Capital Territory
Supreme Court for default judgment
to be served on both defendants via
Facebook. An application for
substituted service was made, and
granted. What is different in this case
is the extent to which the lending
company’s lawyers were able to show
that the Facebook profiles were those
of the defendants. The lawyers
demonstrated that these profiles listed
various personal details, such as their
dates of birth, which were known to
the lending company. Neither
defendant had used any of the various
privacy settings, which would have
restricted the outside world’s access to
their pages. In fact, many Facebook
users do not change privacy options
from the (rather lax) default setting.
Finally, because Australian court
rules already made provision for
electronic service of documents, service
via messages broadly equivalent to
email was arguably a logical extension
of those rules, particularly when both
email and Facebook messages are
private. In granting the application, the
judge in the MKM case even stipulated
that the documents were to be served
privately, which rules out the option to
post anything on the defendants’
“walls” – the Facebook equivalent of a
public noticeboard.
New Zealand
In New Zealand too, one case saw a
plaintiff seeking to use Facebook to
serve papers on an apparently
unreachable defendant.
Axe Market Garden Ltd v Axe
In Axe Market Garden Ltd v Axe, High
Court of New Zealand in Wellington,
CIV-2008-485-002676, a plaintiff
sought to serve papers on a
defendant who was abroad and out
of reach. Again, no official
judgment is available and the
outline of the case has been taken
from press reports. According to
those reports, the plaintiff (a
company headed by the father of one
of the defendants) claimed the
defendant had unlawfully taken
money from the firm’s bank account.
Ordinary service on the defendant had
proved impossible and so the plaintiff
sought an order to enable papers to be
served on the defendant via Facebook.
Here, the relationship between the
plaintiff and defendant made it even
easier to assert and prove the identity
www.lawscotjobs.co.uk
fyi
The summary
cause rules permit
certain documents in
electronic form,
but subject to
exclusions
of the recipient of the documents. In
fact, father and son had apparently
been in regular contact via Facebook
after the son moved to England. The
application was successful. Again, the
New Zealand High Court Rules
(available at www.legislation.govt.nz)
already made provision for electronic
service of documents in specific
circumstances. For any forms of service
more publicly visible or accessible, the
question remains whether that service
would fall within the provisions
relating to electronic service.
In both Australia and New
Zealand, then, a pragmatic approach
has been taken to interpreting rules
on substituted service within the
context of electronic capabilities, as
well as the likelihood of those being
served using various means of IT. In
Scotland, just as in those countries,
many individuals make regular use of
Facebook. It is interesting to consider
what might happen in a civil case if
service of documents was attempted
in a similar manner in these islands.
The United Kingdom
There seem to have been no cases in
point in Scotland, but in ordinary
cause procedure there are currently
no provisions for serving documents
electronically. In summary cause
procedure certain documents may be
lodged, intimated or sent in
electronic form, whether by email “or
similar means”. However, a certificate
of execution of service, citation or
arrestment and a decree or extract
decree of the court are all excluded
from this provision. It seems, then,
that the scope for electronic service of
documents is limited under general
civil procedure rules. The position
might well be different in more
specific areas of law.
In England & Wales, a claim form
and other documents may be served
by fax and other electronic means
where the party being served, or their
solicitor, has previously indicated in
writing their willingness to accept
service in that way. The Practice
Direction which accompanies the
relevant part of the Civil Procedure
Rules (CPR Practice Direction 6) sets
out what circumstances constitute the
“sufficient written indication”
required. When users sign up to social
networking sites, however, they do
not seem to give sufficient written
indication that they accept service. It
is therefore unlikely that the rules
may be interpreted to allow for
service by Facebook. However, it is
still possible for a party serving to
apply for substituted service.
This demonstrates that, despite the
updated rules, there are limits to the
way in which rules can keep up with
advances in technology and, much as
we have seen in the earlier cases from
Australia and New Zealand, the first
case for service of documents over
Facebook in England & Wales is likely
to be based an application for
substituted service rather than the
rules providing for electronic service.
It is likely that the rate of
technological advance will increase
exponentially over the years to come
and, at the moment, it does not
appear that civil procedure rules in
Scotland may be interpreted in a way
which takes these advances into
account. Electronic service might
become more important as
individuals move around more:
regardless of which country someone
lives in at any particular time, their
email address – or Facebook account
– are likely to remain the same. If
there are further postal difficulties
then electronic service might really
come into its own.
The cases discussed in this short
piece demonstrate how rules
elsewhere are being reinterpreted,
perhaps even reshaped, by
technological advances which could
not have been predicted a generation
or so ago. Those advances affect
individuals regardless of where they
live, but what is different is how a
legal system adapts to those
advances. It is worth asking whether
Scotland’s current rules are able to
adapt and remain fit for purpose in
this modern era, or whether we
already need to catch up.
Nicola Shiels, Scottish Government
Legal Directorate.
(Any view expressed is my own personal
opinion and not that of the Scottish Government
Legal Directorate.)
What is different in this case is the extent
to which the lending company’s lawyers
were able to show that the Facebook
profiles were those of the defendants
December 09 theJournal / 39