The Court of First Instance grants service by Facebook Messenger
‘A Novel Situation, a Novel Approach’ – The Court of First Instance grants service by Facebook Messenger
On 6 March 2020, the Court of First Instance granted an order allowing the Plaintiff to serve the proceedings and all the documents therein, including an interlocutory injunction order, out of jurisdiction by way of substituted service in Zhuhai Gotech Intelligent Technology Co Ltd v Persons Unknown (HCZZ 10/2020).
Background
The Plaintiffs being one of the largest set-top boxes (“STBs”) manufacturers in the world, discovered during the Court’ General Adjournment Period, multiple Facebook groups and pages operated by unknown persons which were passing off pirated satellite television subscription services as being provided by the Plaintiffs.
The scale of passing off and trademark infringement was extensive, to the point of utilising photographs and names of directors and employees of the Plaintiffs.
Subsequent to obtaining the ex parte injunctions, the Plaintiff sought to voluntarily discover the contact details against Facebook Hong Kong to which the latter was unable to provide the information as the account information was held by Facebook United States and Ireland respectively.
To avoid costly Norwich Pharmacal type proceedings against Facebook entities based in the United States and Europe, and to ensure that a permanent injunction would be obtained to protect the Plaintiff’s intellectual property rights, the Plaintiff applied for an order of substituted service by sending the soft copies of documents through Facebook Messenger to the Defendant(s) page/account.
Previously, the only recorded decision on substituted service by electronic means was the decision in Deacons v Stanley Wu (unrep., DCCJ 1133/2010, 16 July 2010), where the District Court declined to allow substituted service by the email that was the last known contactable address of the defendant who had gone overseas but ordered substituted service by traditional publication of newspapers.
- Wong J accepted that Deacons was readily distinguished from the present situation, namely: (i) it was not decided on the basis that there was no jurisdiction for the Court to order substituted service by electronic means; (ii) it was decided 10 years ago on the basis that electronic email was at that stage still a developing technology and not regarded as a safe and secure means of communication; (iii) there was no alternative means to contact the intended defendants, without incurring significant expense against entities that were not within Hong Kong’s jurisdiction; (iv) the Hague Convention does not apply when the intended defendants’ addresses are unknown; and (iv) the infringing activities were said to have taken place using the Facebook social media platform.
Importantly, L. Wong J in making the order considered the Singaporean case of David Ian Andrew Storey v Planet Arkadia Pte Ltd [2016] SGHCR 7 and accepted Order 65, r.4(3), Rules of the High Court (“RHC”) could be construed as providing the Court with jurisdiction to make an order of substituted service by electronic means, even in the absence of express wording (which was otherwise expressly provided for under Singapore’s equivalent provision for substituted service.).
Significance
This is a novel development for plaintiffs in Hong Kong who seek to protect their personal and/or intellectual property rights against persons seeking to evade service through online social media platforms.
By construing RHC Order 65 r.4(3) as not limiting the means of substituted service, it provides the Court with the flexibility to tackle with novel situations and emerging technological advances to ensure that justice can be served.
Earl Deng acted for the Plaintiff.