Client Update: Ideas sought for effective use of social media in civil litigation
30 August 2010
In brief: A consultation paper seeking suggestions about how social media can be used effectively in civil litigation has been released by the Supreme Court of Singapore. Partner Matthew Skinner and Senior Associate Justin Simpkins report.
Background
Social media is generally described as any Internet or web-based program that utilises a 'social' or 'web 2.0' philosophy.1 The purpose of the consultation paper that the Supreme Court of Singapore has issued is to explore ways of capitalising on social media to improve the civil litigation process and to seek suggestions on how social media can be used effectively in civil litigation.2
Use of social media in civil litigation
The consultation paper identifies five ways in which social media could be used effectively in the civil litigation process, and sets out some best practices and guidelines for each.
Service of documents via Facebook, Twitter and other forms of social media within Singapore
Regarding service of documents, the consultation paper seeks comments on the following proposals:
- that use of social media only be allowed as an option of last resort;
- social media be used in addition to other, more traditional, forms of substituted service;
- the use of social media should be subject to the applicant proving that the party's account was actively used at the time of service and the person to be served was actually operating that account;
- that substituted service via social media should be prohibited in certain types of cases where, for example, there may be highly sensitive information involved that could affect third parties; and
- where it is intended that substituted service is effected via Facebook, or other websites with distinct public and private notification functions, the plaintiff should first proceed to serve via the private notification function.
Service of documents via social media out of Singapore
With respect to service of originating processes through social media out of jurisdiction where it is the only known way of establishing contact with the defendant, the consultation paper raises the following issues for consideration if it is decided that either personal service by rule or substituted service would be feasible in such situations:
- legislative amendments would be required to allow for personal service by rule;
- if substituted service by social media is allowed, whether an amendment to Order 62 rule 5 of the Rules of Court to expressly include social media as a mode of substituted service is required;
- where service is effected via social media and the defendant applies to set aside service, whether the plaintiff has to show proof of successful transmission of the documents; and
- where transmission is concerned, the timing of service of the documents has to be stipulated in the Rules of Court and could be, eg, when the electronic communication first enters the defendant's information system, or where the electronic communication becomes capable of being retrieved by the defendant.
Conduct of pre-trial conferences on online discussion forums
The consultation paper suggests the following safeguards if pre-trial conferences are to be conducted using online discussion forums:
- to ensure the identity of the persons posting comments on the discussion forum, counsel is to give a solicitor's undertaking at the commencement of each forum discussion that he or she is really the person he or she purports to be;
- use of the discussion forum should be restricted to lawyers who are registered users of the website;
- the online discussion forum would not apply to cases with litigants-in-person;
- the court is to issue clear timings for counsel to post updates on the discussion forum; and
- where the court has specific questions it wants parties to address, it may choose to log onto the discussion forum at the same time that counsel are present.
Exchange of discoverable documents on websites
As to documents exchanged on online platforms, the consultation paper suggests the following safeguards:
- restrict the online exchange of documents to only platforms of greater repute and reliability on a case-by-case basis;
- each party is to remain aware of any possible interception, corruption or change to the documents provided to the other side, and, if necessary, to resend the documents to the other side in a more traditional manner to ensure the integrity of the documents;
- the parties should not use web-based exchange programs where the need to protect the documents' confidentiality from third parties outweighs any benefits from online exchange; and
- to consider the feasibility of expanding the soon-to-be-launched iELS3 to provide an online portal for the exchange of soft copies of documents during discovery and inspection.
Safeguards for discovery of documents and preservation of evidence
Finally, the consultation paper recommends guidelines relating to the discovery of documents, and preservation and inspection of evidence on online media be issued by way of practice direction.
Timing
Interested parties should provide their comments on the proposed guidelines, safeguards and recommendations to the Supreme Court by 15 September 2010.
Conclusion
Service of originating processes and other court documents through social media is an issue that many jurisdictions have already faced.4 In that context, it is timely that the Supreme Court of Singapore has issued its consultation paper to address these issues in an open forum.
The proposal to use online discussion forums for the conduct of pre-trial conferences and the use of online platforms for the exchange of discovered documents is intended to lead to a more efficient and cost-effective litigation process.
Footnotes
- The Web 2.0 Glossary. See http://webtrends.about.com/od/web20/a/web20-glossary_2.htm. Examples include social networking sites such as Facebook, MySpace, Twitter, Linked In, blog sites, and social media sites such as YouTube.
- Supreme Court of Singapore, 'Use and Impact of Social Media in Litigation' (August 2010).
- Integrated Electronic Litigation System.
- Substituted service via Facebook was permitted by the Supreme Court of the Australian Capital Territory in MKM Capital Property Limited v Corbo and Poyser (2008, unreported) and the New Zealand High Court in Axe Market Gardens v Craig Axe (2008, unreported). Alternative service of an injunction via Twitter was permitted by the High Court of England in Blaney v Persons (2009, unreported).