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SERVING THE INTERNET - Nowhere to Hide in Cyberspace from a Cyber Lawyer
by Paul Lambeth and Jonathan Coad
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 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
In summary, at that emergency first hearing we needed to obtain:
* An Injunction to restrain the individual from carrying out his
* Permission to serve the proceedings and that Injunction outside the
* Leave of the Court dispensing with the normal requirement for
* 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!
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
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
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
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 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.
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
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 IN A London, England
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