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Serving Court Documents Through Facebook And Twitter: The Singapore Position?
December 2009 | Litigation & Arbitration | Litigation Brief

In recent months, common law legal systems have made numerous inroads into the archaic rules and procedures governing the service of court documents. In December 2008, the Australian Capital Territory Supreme Court approved an application to use Facebook for the service of a default judgment on a defendant who had failed to appear and after several attempts to contact him did not yield results. In February 2009 the Canadian Court of Alberta ordered that a defendant be served by sending notice of the action to the Facebook profile of the defendant. In March 2009, a New Zealand court ruled that a plaintiff could serve a foreign defendant living in Britain via Facebook when the plaintiff was unable to find any other address. In October 2009, the English High Court ordered an injunction to be served through Twitter and in the process also ordered that the anonymous Twitter user reveal his/her identity.

The Singapore equivalent for the service of court documents through unconventional means are found in Order 62 rule 5 of the Rules of Court, dealing with substituted service. This provision is often relied upon where there are practical difficulties in effecting service and alternative means have to be sought. The common prayers for substituted service include service by advertisement in the newspapers, by post or by posting on the court notice board. Substituted service through media platforms such as Facebook and Twitter, while in variance with the more conventional prayers, would ostensibly fall under the broad terms of Order 62 rule 5 which places no restrictions on the means of substituted service but maintain that such means should operate to "bring the document to the notice of the person to be served".

The locus classicus on substituted service is Ng Swee Hong v Singmarine Shipyard [1991] SLR 165 which supports the belief that Singapore courts would not hesitate to follow the path opened by our learned friends in the Commonwealth. In Ng Swee Hong's case, the court granted substituted service on the defendant's family on the basis that the defendant was in contact with his family and that service in such a manner was likely to bring the defendant's attention to the matter. Similarly, if counsel is able to prove that the party to be served can be contacted through such media platforms, there is no reason to deny the application.

Further, given the prevalence and pervasiveness of media platforms such as Twitter, Facebook and the like, there is no reason to suggest that substituted service through these platforms would be any less effective than posting in the newspapers or on the Supreme Court notice board. In fact, given the technological advantage in tracking the usage and entry logs of the users of such platforms, it is believed that these would be even more effective in bringing the document to the notice of the person to be served.

Before jumping on the bandwagon of service through such media platforms, counsel should tread carefully for there are significant implications that may arise and result in the service being challenged and even set aside. In view of the fact that users of the media platforms are sometimes anonymous or have created false personas or provided inaccurate information on their identity, counsel will have to address the issue of accurately identifying the party to be served. To that end, it would be prudent to include an order that the true identity be ascertained before service, possibly through procuring the assistance of the platform administrator.

Further, the borderless nature of these media platforms makes it necessary for counsel to explore the possibility that the person to be served may reside out of jurisdiction and accordingly decide whether to obtain an order for substituted service out of jurisdiction or simply an order for substituted service.