(Nowhere to Hide in Cyberspace from a Cyber Lawyer)
by Paul Lambeth and Jonathan Coad
Partners
Messrs Schilling & Lom
Royalty House
72 - 74 Dean Street
London
W1V 6AE
Tel:011-44-171 453 2500
Fax:011-44-171 453 2600
DX:89265 (Soho Square 1)
e-mail:admin@schillinglom.co.uk
THE ORDER
On 11th April an historic hearing took place in the Queens Bench Division of the Royal Courts of Justice, London, England. The contrasting worlds of the sometimes archaic English Legal Process and the modern phenomenon of the Internet met in the form of this order:
"(1) The Plaintiff do have leave to serve the Writ herein outside the jurisdiction of this Honourable Court
(2) The Plaintiff do have leave to serve notice of the Writ herein, and to serve the Affidavit and this Order,... by E-Mail, at the number and addresses stated on the Writ herein"
THE PROBLEM
The Application was an emergency one, as our media personality client was faced with the prospect of the awesome power of the Internet being used to disseminate defamatory material about them. A series of E-Mail messages were received at our offices, which contained the threats against our client, and set a short deadline before they were to be carried out. An emergency application was required to a Judge in Chambers (ie. in a Court where the public is excluded).
The normal means of service provided no means of putting the Defendant on immediate notice of the Injunction to ensure that he was bound by it and liable for contempt of court if he breached it. He was (we thought) in Europe, but only had post-marks on some envelopes (also sent by the Defendant) to indicate which country. We had no address, and the only fax line available appeared to be in a different country from where the threats had been sent, and was therefore of little use. The Defendant had however provided two E-Mail addresses to enable us to communicate with him, which in the circumstances were the obvious destination for the Injunction.
In summary, at that emergency first hearing we needed to obtain:
* An Injunction to restrain the individual from carrying out his threats;
* Permission to serve the proceedings and that Injunction outside the court's jurisdiction;
* Leave of the Court dispensing with the normal requirement for personal service;
* Permission to serve that Injunction via the internet (which had so far as we knew neither been sought nor obtained in an English Court).
An ambitious prospect for a short emergency hearing, particularly when aspects of our procedure are far from modern, for example when Writs are issued in the Queen's Bench Division, they are entered in leather-bound ledgers in copper-plate handwriting. Here was an opportunity for the English legal system to show that it was not only familiar with but could extend its jurisdiction into cyberspace!
THE SOLUTION
In England the procedure in the Supreme Court is governed by a series of practice rules contained in what is known by practitioners as the "White Book". The citation for these Orders is normally in the following form; RSC (Rules of the Supreme Court) Order 1 Rule 1.
Leave to serve English legal proceedings outside the jurisdiction of the English Courts is governed by RSC Order 11 Rule 1, which provides that leave will be granted in (inter alia) the following circumstances:-
1. The Defendant is carrying out his unlawful activity within the English jurisdiction;
2. Damage was sustained by the Plaintiff within the jurisdiction;
3. The Defendant is domiciled within the jurisdiction.
Since at least one of these provisions applied, that element of the necessary relief from the Court presented no problem. Our difficulty was one of communication ie putting our cyber Defendant on notice of the Order to which he had become subject.
RSC Order 65 Rule 5 provides service of a document (not requiring personal service) may be by Personal Service, Post, DX or Fax, or (Rule 5(1)(d)); "in such other manner as the Court may direct". However Order 65/1/2 stipulates that Court Orders such as Injunctions "obedience to which may be enforced by committal..." require personal service. This was impossible, not least because we did not know where our defendant was.
It was therefore necessary to obtain an order for substituted service, by virtue of RSC Order 65 Rule 4. As the rules make clear, this should only be granted where the Court "is satisfied that a practical impossibility of actual service exists, and that the method of substituted service asked for by the Plaintiff is one which in all reasonable probability, if not certainty, will be effective to bring knowledge of the Writ or notice of the Writ (as the case may be) to the Defendant".
Explaining our difficulty to the Court, we sought leave to utilise the method of communication favoured by the Defendant; E-Mail.
In this case the only practical way to bring the Order to the notice of our defendant was via the Internet into his P.C..
The Judge therefore showed imagination and pragmatism in granting the Court Order, which was swiftly dispatched via the Net.
The Injunction had the deserved effect, the threats were withdrawn, and the danger to the client thereby averted.
THE FUTURE
The Rules of the Supreme Court have for some time permitted service of proceedings by fax (with certain specific safeguards). There seems no reason in principle why the Internet/E-Mail should not be used in the same way, since both also constitute the communication of visual material by digital data.
One of the principle advantages of service by fax over DX (a system of document exchange) and post is that the technology provides proof of successful transmission, which is generally taken by the Court to constitute proof of receipt by the intended recipient.
The Internet service provider which we used (PIPEX) provides a command on transmission of the E-Mail permitting the sender to know whether it has been received by the recipient; service provider.
PIPEX does however not permit the sender to know whether the E-Mail has been received let alone read by the recipient. But the same is true of a fax. The fact that it has been successfully transmitted is no guarantee that the recipient has actually read it.
POSTSCRIPT
Our defendant considerately E-mailed a response to the Order, thereby proving that he had received it! To enforce the Order (by an application for committal etc.) the Court must be satisfied that he had received it. The present technology does not (so far as we are aware) permit E-Mail messages to have the complete "return/receipt" facility that the internal E-Mail system in this firm allows, whereby the sender can transmit the E-Mail with a demand that he is notified when the E-Mail is read. Even if that technology did exist, it would be open to the intended recipient to say that he was not the one who viewed the E-Mail on his PC, although the Court may be very reluctant to accept such evidence.
So far as the issue of enforcement is concerned, there are still issues for the Court to address. There remains what are (for lawyers) a fascinating series of unanswered questions, such as where defamatory material is published, where threats are made, what is the applicable national/international law so far as the Internet is concerned etc.
The Internet may, in the midst of creating an array of interesting new legal problems, also provided a solution to an old one. The existence and value of the new technology has been recognised, and doubtless other lawyers (some of whom have contacted us concerning this Order) will seek to take advantage of our pioneering application.
The age of the cyber-lawyer has arrived, and the process has begun of bringing the Internet within the legal constraints provided by the civil law which apply to other forms of communication.
PAUL LAMBETH and JONATHAN COAD are both Partners at Schilling & Lom. Paul Lambeth specialises in Intellectual Property and is the Partner responsible for Information Technology. Jonathan Coad obtained this Injunction on behalf of an international client and specialises in Libel and Commercial Litigation. Schilling & Lom is a specialist media firm who provides a complete service to corporate and individual clients.
