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Developments in information technology (IT) over the past few decades have enabled a vast amount of information to be quickly exchanged as a matter of course. For many people, working methods in academia, practice and in everyday life have dramatically adapted. This article is a case in point: it was researched online and written and submitted without recourse to pen or paper. As an increasing amount of time – and money – is spent online, as lawyers it is worth pausing for a moment to consider how the law fits into this equation.

Recent cases involving court practice rules and electronic service of documents from the southern hemisphere offer an interesting insight into what might be to come in this particular aspect of law and technology. The examples that follow demonstrate the advancements being made in some jurisdictions, where existing court rules have already been interpreted in light of modern IT use.

Australia

Over the past year or so in Australia, there have been at least two cases in which permission was sought for service of documents via Facebook. Unfortunately there is no public judgment available in either case, although both were considered in a recent article, Joanne Drane: “Are the English Courts Ready for Service through Facebook?” (2009) 30 BLR 80, as well as in various press articles. It is worth looking at each case in a little more detail to find out what might one day be the case in Scotland.

Citigroup v Weekaroon

In Citigroup Plc Ltd v Weekaroon [2008] QDC 174 (16 April 2008), an application was made in Queensland District Court for substituted service of a statement of claim on a defendant, i.e. service by means other than those set out in the applicable rules, subject to certain restrictions. The substituted service was via a private message over Facebook – a function which, like an email, enables a message to be privately sent to an inbox.

For those not part of the 300 million (and counting) Facebook users, it might be worth pausing to explain the basics. A Facebook account can easily be set up by registering online. After registration, a webpage belonging to the account holder is created. That page – or certain aspects of it – may be made visible to others, depending on the level of privacy selected by the owner. However, the account contains other areas, such as an inbox, which are private and require a password.

In any event, the application was rejected because it could not be proved who the page belonged to. In fact, in a number of instances involving celebrities, Facebook accounts have been set up in the names of others. In the next Australian case, the identity of the two account holders was easier to verify because they were linked to each other online.

MKM Capital Property v Corbo and Poyser

In MKM Capital Property Ltd v Corbo and Poyser, ACT Sup Ct, 12 December 2008 (No SC 608 of 2008), MKM, a lending company, obtained default judgment against two defendants. The company seemed to go to considerable lengths to reach the defendants, but still experienced difficulty serving the default judgment using traditional methods. MKM’s lawyers then discovered that both defendants had active Facebook profiles, and that they were “friends” with one another. Again, by way of explanation, on Facebook an individual has “friends”, who might in real life be relatives, partners or colleagues. Depending on the chosen 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 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.)