20 June, 2016
Anyone with an affinity for legal dramas would at some point have heard the catchphrase and be somewhat acquainted with the legal procedure of serving the defendant with a writ (summons issued by the court) which would mark the beginning of a series of court battles frequently interjected with protestations (cue “objection!!”) by dapper counsels who enthral the audience with their convincing sophistry.
In reality, the catchphrase is simply a means of drawing the defendant’s attention to what was being served (the writ of summons) so that the defendant is made aware of the court action brought against him and would have an opportunity to defend himself. It is unnecessary for the process server (or anyone instructed to serve) to say those exact words. Thus, service may be effective even if all that was said was “Dude, you are so dead, lol” so long as the defendant is put to notice of the action, proof of which is shown when, for example, the defendant has caused his appearance to be entered in the cause book (to “enter appearance” means to submit to the court’s jurisdiction and to notify the court of the defendant’s wishes to defend the action).
In Malaysia, the mode of service is prescribed by the Rules of Court 2012 and varies depending on the type of defendant (for example: individual, company, person under disability, etc) to be served with the court papers. Generally for individuals, the rules require for service to be effected by way of personal service (by leaving a copy of the writ with the defendant) or by prepaid A.R. registered post addressed to his last known address.
The purpose of personal service is to bring to the defendant’s notice of the action that has been taken against him; would service be valid if a non-conventional method is employed to achieve the same purpose then? Can you serve court papers by Facebook?
Facebook, Twitter, Instagram-social media outlets that have, among other things, reduced human interactions to perfunctory “likes”, “shares” and ramblings within 140 characters on virtual space-love it or hate it, have become so widespread that even government officials had begun to take cognizance of its utility. It is now commonplace to find Facebook and Twitter accounts of governmental departments which are used to disseminate information to the public.
The courts in some jurisdictions likewise have recognized the reach of social media and have in some instances taken a pragmatic approach by allowing it to be used as an alternative mode of service when the traditional modes have failed.
In Axe Market Garden Ltd v Axe CIV-2008-485-2676, the High Court in New Zealand allowed substituted service to be effected via Facebook as the defendant’s exact location could not be ascertained without difficulty. Similarly, the Canadian court in Knott v. Sutherland (Feb. 5, 2009) Edmonton 0803 002267 (Alta.Q.B.M.) allowed the plaintiff to effect service by sending notice to the defendant’s Facebook page. In Larry Philip Fontaine et al v. The Attorney General of Canada et al, (8 August 2014), Winnipeg MBQB CI05-01-43585 (MBQB) the Canadian court accepted the plaintiff’s argument that it was impractical to effect personal service on the defendant and in view of the defendant’s frequent and recent usage of Twitter, the court allowed the plaintiff to give notice via Twitter.
Service by social media, whether by Facebook or Twitter, is type of substituted service and is an exception to the general rule which require court’s leave without which service will be void. In Malaysia, substituted service is ordinarily effected by advertising on newspapers, and placing notices in the court premises and at the defendant’s last known address. It is a recognized and common practice but remain to be seen whether it has become obsolete by virtue of the emergence of social media. (How many of us actually read the notices section in the newspaper?)
For now, service by social media has yet to be accepted by Malaysian courts but it would be interesting to see how our arbiters of justice respond to the changing social landscape.
For further information, please contact:
Amirul Izzat Hasri, Donovan & Ho
amirul@dnh.com.my
