Social media makes legal discovery

The advent of social media is changing the way law enforcement and legal proceedings are carried out, with countries such as Singapore and the United States leveraging these platforms to track down potential lawbreakers.

Police forces around the world are adopting platforms such as Facebook not just to reach out to the community, but also to sniff out criminal activities.

Bob Yap, head of forensic at KPMG Singapore, told ZDNet Asia that law enforcement agencies can leverage various sources of information including online media.

One recent case in Singapore, for instance, local authorities took action on sensitive sermons given by a pastor from the Lighthouse Evangelism Church which were reposted on Facebook, as well as allegedly racist remarks posted by three youths in response to the sermons. Yap noted that this demonstrated the police may "consider taking action" once unlawful activities are reported in an unconventional manner.

He also highlighted the case of Pasquale Manfredi, a suspected member of an organized crime syndicate who was arrested last year in Italy after authorities purportedly used Facebook data to track him down.

Nancy Kolb, senior programme manager of International Association of Chiefs of Police, said: "Social media has many different applications for law enforcement agencies. It is used to investigate crimes, solicit tips about unsolved crimes, share information and engage with community members, and recruit employees."

In a March interview with FutureGov Asia-Pacific, Kolb highlighted that social media is an "additional tool" to aid law enforcement agencies in making their work more effective.

Legally served by Twitter, Facebook
While law enforcement agencies have been flexible in leveraging social media, commonwealth courts around the world are still mulling the possibility of introducing "substituted service" into their civil and criminal litigation process. Substituted service refers to the serving of court documents through other means, such as by way of a newspaper advertisement, if litigants cannot be reached through personal and ordinary means. Traditionally, court documents are served in person, by ordinary post, registered post or through their lawyers or process agents.

However, with the proliferation of social media, Australia, Canada and the United Kingdom now allow the serving of documents via Twitter and Facebook as "substituted service" for relevant cases.

In Singapore, the Supreme Court last year issued a consultation paper seeking opinions on how Facebook and other platforms can be incorporated into the civil litigation process, but not criminal proceedings.

Its proposal to adopt social media also extends to the sharing of discovery documents through online file-sharing sites and holding pre-trial conferences in online discussion forums.

Bryan Tan, a Singapore-based lawyer and director of Keystone Law, noted that the adoption of social media would be beneficial as the availability of more channels to serve summons and papers will enhance the efficiency of court proceedings. However, the question remains whether "if is fair to do so", he said.

Tan explained that prejudice may be caused to defendants who may not receive the actual papers as "the technology is not set up for this purpose". Other concerns include the potential risk in trivializing the commencement of proceedings which is a fundamental step in the process, as well as the issue of reliability because it would be tough to ascertain whether the defendant actually saw the messages posted on his Facebook wall or sent via Twitter.

Thus, Tan noted that courts would have an "essentially supervisory role" to ensure social media is only used legitimately.

However, he added that in cases where defendants are proved to be active social media users, such substituted service may be more effective than an advertisement in the papers, or posting a notice on the notice board at the Supreme court.

Case proceeding time also may be shortened with the timely serving of papers online, and courts can proactively track and manage cases once the mechanism is in place, he said.

Hong Kong-based law firm, Mayer Brown Practices, said: "[This] new method of substituted service makes it much easier for plaintiffs to effect service and correspondingly more difficult for defendants to evade service or hide behind the cloak of the Internet."

It said in a report online that once adopted by Hong Kong courts, substituted service by social media may become "popular" in discrimination, harassment, defamation and intellectual property infringement cases that occur online.

Not only will it be timely and cost-efficient, service "out of jurisdiction" to defendants in other countries can also be effected through "the click of a mouse" so long it does not contradict to the law of that country, the law firm said.