Serving You Looks and Cause Papers — A Brief Overview on Modern-Day Substituted Service

Written by Saradha Lakshmi Hariharan, an associate at Lim Chee Wee Partnership and alumna of the Faculty of Law, Universiti Malaya.
Edited by Sulakhni Kaur Khosa.
Reviewed by Pravena Sreetharan and Devon Sia. ​

This article explores the rise of social media and electronic communication in the legal realm, specifically in the context of substituted service in the Malaysian landscape. Various methods of substituted service through social media or messaging platforms such as Facebook, Twitter, and even Non-Fungible Tokens (NFTs) in foreign jurisdictions are discussed. This article further highlights the courts’ strict measures in ensuring proper identification of the defendant before allowing substituted service. The author predicts that in due time, Malaysian courts will follow suit and implement substituted services through social media or electronic means. Overall, this article provides valuable insights into the evolution of substituted services and their potential impact on the legal system.

I.    INTRODUCTION
The legal realm is no stranger to the rise of social media and the evolution of technology. Additionally, the COVID-19 pandemic created an emergent situation where courts were required to rapidly transition to rely heavily on electronic means in the interest of justice. Accordingly, the use of substituted service became a point of interest. Even prior to the worldwide pandemic, various jurisdictions have started using social media to effect valid service. This is thus a welcome change to ensure that service remains effective and that justice is not disrupted.

As such, this paper will firstly examine the Malaysian landscape of substituted service, explore the various methods for good service via social media that have been accepted by the courts in multiple jurisdictions, then comment on the possible evolution of substituted service in Malaysia to include various electronic means.

II.   THE MALAYSIAN LANDSCAPE
Substituted service in Malaysia is provided under Order 62 rule 5 of the Rules of Court 2012 (“ROC”).[1] This Rule reads as follows:

‘5. Substituted service (O. 62 r. 5)
(1) If, in the case of any document which in accordance with 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 133 for substituted service of that document.
(2) An application for an order for substituted service shall be made by notice of application supported by an affidavit in Form 134 stating the facts on which the application is founded.
(3) A 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.’

From 15th December 2020, the ROC was amended to include Order 62 Rule 1 (cc), where parties can now effect the service of documents through electronic communication. Although electronic communication was not defined in the recent amendments, this is subject to further clarification through subsequent Practice Directions or court orders.

The 2020 amendments to the ROC also saw the introduction of Order 63A Rule 17,[2] which allowed service between parties’ solicitors through the Electronic Filing System (‘EFS’). However, this is not available for documents which require personal service under the ROC.

These are currently the only substituted methods prescribed under the ROC for service to be done electronically. However, as this amendment is still in its infancy, it is essential to look at the various other methods of substituted service in other jurisdictions to see how these rules would evolve down the line.

III.   METHODS OF VALID SUBSTITUTED SERVICE IN FOREIGN JURISDICTIONS
This section will cover the various methods of substituted service through social media or messaging platforms.

A.    Text Message
One such instance of good service done through text message was executed in the decision of NPV v QEL and Anor.[3] In this decision, the High Court of England and Wales allowed for the service of an interim injunction to be done by way of a text message.

This case concerned allegations of harassment and the exploitation of private information related to an alleged blackmail attempt. The first defendant (‘QEL’), a customer service representative, and the claimant (‘NPV’), a married and prosperous businessman, engaged in a brief sexual relationship. Throughout their relationship, NPV provided financial assistance to QEL. However, her demands for money grew, and things reached a breaking point when she threatened to expose him unless he paid her a very large sum of money.

At approximately the same time, an unknown party (‘D2’) entered the picture. D2 called NPV and claimed to be a journalist with information about the scandal and that he intended to publish a piece on it. Ultimately, an agreement was made between the two where NPV agreed to pay D2 £75,000 during an arranged meeting. However, rather than hand over the money, NPV had intended to serve D2 with the harassment injunction that may have been granted by the Court the day before said meeting.

During the hearing, Mr Justice Nicklin granted the injunction sought by NPV and proceeded to make an order that permitted the service of the injunction through text message on the grounds that NPV only had D2’s phone number and it was the ‘only practical alternative means presently available’ in which NPV would be able to serve D2 if said meeting set for the next day did not take place.[4]

B.    Facebook
There have been numerous instances where the courts have allowed for substituted service to be done via Facebook.

In Australia, the Australian Capital Territory Supreme Court in MKM Capital Property Limited v Corbo and Poyser allowed for the service of a default judgement via Facebook.[5] Although the written judgement was not available, there was wide press coverage.

In this case, the defendants did not show up in court to defend themselves despite defaulting on loan payments to the mortgage lender (‘MKM’). However, MKM was able to acquire a default judgement for the loan balance and ownership of the defendants’ home although the defendants were unidentifiable and could not be served personally as required by the applicable procedures.[6]

In addition to the fact that the co-defendants were ‘friends’ with one another, MKM’s attorneys found the defendants’ Facebook pages, which included information on their birthdates, email addresses, and ‘friend’ lists.[7] The court was provided with a printout of this information, wherein the judge determined reasonable to alert the defendants and ordered substituted service to be done by way of a private message via said Facebook pages to inform the first and second defendants of the entry and terms of the default judgement.[8]

However, it is also important to note the earlier Queensland District Court decision of Citigroup Pty Ltd v Weerakoon,[9] where the court refused to allow for substituted service by way of the email on the defendant’s Facebook page due to uncertainty of the page and the risk of impersonation.

In New Zealand, the High Court in the decision of Axe Market Gardens v Craig Axe[10] relied on the Australian decision of MKM Property and allowed for the service of proceedings to be done via Facebook. It was decided that newspaper advertising would not effectively target the defendant who lived overseas. Hence, the court found that Facebook would be the better platform for effective service.

In Knott Estate v Sutherland, the Supreme Court of British Columbia allowed the plaintiff to serve his defamation claim via Facebook, as this was the platform on which the defamatory publications were posted.[11] The court, in coming to this decision, referred to two decisions that were particularly helpful:[12]

• The New South Wales decision of Mothership Music Pty Ltd v Darren Ayre,[13] where the court permitted the service of an injunction application via e-mail transmission and Facebook.
• The Australian decision of Bryne v Howard,[14] where the court allowed for the service of a child support application to be done via Facebook and other electronic means.

The High Court of England and Wales — relying on the decisions made in Australia, New Zealand, and Canada — in February 2011 allowed for service of a claim to be done via Facebook.[15] The reason for this was that it satisfied two key criteria:[16]

• The relevant Facebook account belonged to the person in question; and
• The individual habitually checked the account.

The solicitors of the claimant proved this by showing a recent acceptance of friend requests on the platform. The court ordered for the documents to be sent as PDF files by way of message to the Facebook account.[17] Service was deemed to have occurred 14 days after the Facebook message was sent.[18]

C.    Twitter
In October 2009, the Chancery Division of the English Courts allowed the service of an injunction via Twitter in Blaney v Persons Unknown.[19]

In this case, an individual using the Twitter handle ‘@BlaneyBlarney’ along with a picture of Mr Donal Blaney and a link to his blog had been impersonating the commentator on the right-wing blog ‘Blaney’s Blarney’. The actual Mr Blaney then sought an injunction against the defendant impersonator requiring him to cease his tweeting (in breach of intellectual property rights), preserve the account and password, and identify himself.[20]
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Mr Justice Lewison granted the injunction sought and permitted the substituted service via Twitter on the following grounds:[21]

• The defendant was anonymous and difficult to identify;
• The offending Twitter page through which service was to be effected belonged to and was regularly visited by the defendant; and
• It was possible to monitor on Twitter whether the defendant had received the injunction.

The service was done through a message sent to the defendant’s account, which included a link to the full text of the injunction.[22] The court determined that the defendant would have received this message the next time he logged on.[23] As such, it was considered to be effective service.

D.    Instagram
In February 2021, the English firm Clyde & Co reported that they were able to obtain an order for service for a judgement in default to be done via Instagram.[24] This was granted after various attempts at serving the judgement via post and personal service proved unsuccessful. The court found that for such evasive defendants — which posed a great challenge to the claimants — substituted methods such as this proved necessary in the interest of justice.[25]

E.  Non-Fungible Token (NFT)
Non-Fungible Tokens (‘NFTs’) are cryptographic assets on a blockchain with unique identification codes and metadata that distinguish them from each other.[26] In the recent decision of D’Aloia v Persons Unknown & Others,[27] the High Court granted an order allowing service of court proceedings through an NFT — in the form of ‘airdrop’ — into the crypto wallets of the anonymous defendant.

In this case, the applicant Fabrizio D'Aloia sued several unidentified parties, including the defendant Binance Holdings Limited, for the return of around 2.1 million USDT and 230,000 USDC in cryptocurrencies that he claims were fraudulently taken from him by unidentified parties operating a sham website.

The applicant claimed that he had fallen victim to a scam in which he had been tricked into transferring USDT and USDC from his Coinbase and Crypto.com wallets into two named wallets with tda-finan.com. This bogus website falsely claimed to be linked to a legal, US-regulated company. The petitioner afterwards found out that 2.17 million USDT and USDC had been transferred to several private addresses and exchanges run by or under the authority of various defendants.

The applicant then filed a lawsuit against the defendants to recover his invested cryptocurrencies. He also asked for interim injunctive relief, disclosure orders, and ancillary orders — including a court order requiring the first unidentified defendant to receive notice of the lawsuit by substituted means such as email and service by ‘airdrop’ of an NFT into the wallets he had transferred his cryptocurrencies into.[28]

The court found that most of the defendants were outside the court’s jurisdiction in Thailand, the Cayman Islands, Panama, and Seychelles. Further, the first defendant’s location was unknown, but was most likely outside the jurisdiction of the court as they were anonymous creators of the website. As such, the court found that it was only apt to allow for service by way of NFT, as ‘the difficulties that would otherwise arise and the complexities in relation to service on the first defendant mean that good reason has been shown.’[29]

This service would be done by way of ‘airdrop’ whereby the court documents were ‘dropped’ into the wallets behind the same bogus website where the claimant had first deposited his cryptocurrencies.[30] Service would also be done by way of email.[31]

IV.    COMMENTS AND CONCLUSION
As mentioned above, most Commonwealth countries have progressed to allowing substituted services via social media or messaging platforms. This is especially so when the defendants are hard to reach and serving documents physically prove impossible. Such permission by the courts has allowed for justice to be pursued, especially in circumstances where it would be impossible for service to be achieved otherwise.

From a Malaysian standpoint, it is only a matter of time before our courts allow such methods of substituted service to be implemented. The 2020 amendments to the ROC have already given way for service to be done electronically. Thus, the courts are now at the discretion to grant service through social media if deemed necessary.

One such circumstance to show that the Malaysian courts are ready to embrace such service is reflected in the recent decision of Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor.[32] Here, the court allowed for service to be done by way of email and advertisement in a local newspaper, as these were the two most practicable methods of bringing the proceedings to the notice of the unidentifiable defendants.

Evidently, Malaysian courts are ready to make decisions in the interest of justice to allow for service by various alternative means. Further, the provisions of Order 62 rule 5(3) of the Rules of Court 2012 can be interpreted widely to include various methods of substituted service. As such, so long as the court is satisfied that service via Facebook, Twitter, Instagram, or even through NFTs are the best methods to effect service, then it is at the discretion to allow it — albeit providing strict circumstances when such service can be permitted.

Such strict circumstances prevent abuse in the process by ensuring substituted service via social media is only done so when necessary. A key point of the assessment is whether the particular substituted service is the best and only way to bring the proceeding to the other party’s attention. So long as this criterion is fulfilled, then substituted service via such alternative means should be allowed.

It is also important to note — such as in the decision of Ako Capital LLP — that the courts are strict in ensuring that the social media accounts are not a façade and are owned by the defendant themselves should service by way of social media be executed. This helps ensure that service is executed properly on the person whom the claim is against.

The provision of such methods of substituted service will allow for a paradigm shift in the Malaysian legal landscape. Not only is it cost-effective, it is also the best way to reach out to people who lurk in the shadows and try their best to not surface. Further, such substituted service will allow for more wrong doers to be brought to justice despite trying to evade court proceedings. Although, such service is only to be effected once it can be proven that no other traditional means of service are possible.
​
Ultimately, it will not be long until Malaysian courts provide service via Facebook, Twitter, Instagram, or NFTs to keep up with the ever-progressing technological state of the legal landscape.

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Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes:
[1] Rules of Court 2012 (Malaysia) O 62 r 5.
​
[2] Rules of Court 2012 (Malaysia) O 63A r 17.

[3] NPV v QEL and Anor [2018] EWHC 703 (QB).

[4] See footnote 3 above, 28.

[5] MKM Capital Property Limited v Corbo and Poyser, No. SC 608 of 2008.

[6] See footnote 5 above.

[7] See footnote 5 above.

[8] See footnote 5 above.

[9] Citigroup Pty Ltd v Weerakoon [2008] QDC 174.

[10] Axe Market Gardens v Craig Axe, CIV: 2008-495-2676.

[11] Knott Estate v Sutherland [2009] A.J. No. 1539.

[12] See footnote 11 above.

[13] Mothership Music Pty Ltd v Darren Ayre (T-As Vip Entertainment and Concepts Pty Ltd.) [2013] NSWCA 268.

[14] Bryne v Howard [2010] FMCAFAM 509.

[15] Ako Capital LLP & Ako Master Fund Limited v TFS Derivatives Limited.

[16] Wendy Doyle Solicitors. (2012, Jun 16). Is the High Court on Facebook? — Lexology. Wendy Doyle Solicitors. Retrieved from <https://wendydoylesolicitors.wordpress.com/2012/06/16/is-the-high-court-on-facebook-lexology/>. Site accessed on 13 Sept 2023.

[17] Leslie, S. (2015, Mar 2). Court 'Likes' notification via social media. Lexis Nexis. Retrieved from <https://www.lexisnexis.co.uk/blog/restructuring-and-insolvency/court-likes-notification-via-social-media>. Site accessed on 13 Sept 2023.

[18] See footnote 17 above.

[19] See footnote 17 above.

[20] Herbert Smith Freehills. (2009, Nov 30). Service Permissible via Twitter. Herbert Smith Freehills. Retrieved from <https://hsfnotes.com/litigation/2009/11/30/service-permissible-twitter/>. Site accessed on 13 Sept 2023.

[21] See footnote 20 above.

[22] See footnote 20 above.

[23] See footnote 20 above.

[24] Power, R., & Devenish, S. (2021, Feb 23). Service of judgement in default permitted via Instagram. Thomson Reuters Dispute Resolution Blog. Retrieved from <http://disputeresolutionblog.practicallaw.com/service-of-judgment-in-default-permitted-via-instagram/>. Site accessed on 13 Sept 2023.

[25] See footnote 24 above.

[26] Sharma, R. (2023, Jan 28). Non- Fungible Token (NFT): What It Means and How It Works. Investopedia. Retrieved from <https://www.investopedia.com/non-fungible-tokens-nft-5115211>. Site accessed on 13 Sept 2023.

[27] D’Aloia v Persons Unknown & Others [2022] EWHC 1723 (Ch).

[28] Skrine. (2023, Jan 9). Non-Fungible Tokens — a new way to serve court documents. Skrine. Retrieved from <https://www.skrine.com/insights/alerts/january-2023/non-fungible-tokens-a-new-way-to-serve-court-doc>. Site accessed on 13 Sept 2023.

[29] See footnote 27 above, 40.

[30] See footnote 27 above, 38.

[31] See footnote 29 above.

[32] Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor [2021] 7 MLJ 178.