Facebook: a new way to serve court notices?

The Times newspaper has reported a recent Australian case which has been making legal history in Australia on the issue of methods of service of court notices. The supreme court judge of the Australia Capital Territory has ruled that court notices served via Facebook are binding. The case is in stark contrast to a previous Australian ruling (by a district judge in Queensland) that service of legal documents via Facebook was not effective service as the Claimant failed to attempt to serve the documents via the methods provided by law (e.g. post).

This surprising ruling seems to turn very much on the facts of the case: the lawyers of the Claimant attempted to serve the court notice to the Defendants personally on several occasions, in compliance with the provisions of the law. However, they were unable to physically locate the Defendants.

The lawyer of the Claimant tracked down the Defendants on Facebook by searching for their email addresses (which the Defendants communicated to the Claimants earlier on) and date of birth. The judge accepted the argument advanced by the Claimant that this was indeed a lawful method of service despite not being the conventional one.

CyberPanda thinks that this is a very controversial ruling which raises a number of questions including privacy and legitimacy of notices served via online social communities as Facebook. CyberPanda is very doubtful that this ruling will have an impact in the UK: the Civil Procedures Rules in the UK have strict provisions as to the acceptable methods of serving legal documents on parties to a case and it is very difficult to see the rationale for expanding the scope of the existing rules to include online social communities. This case is setting a very dangerous precedent and CyberPanda will not be surprised if this ruling is distinguished (factually) in subsequent cases.

Guess which games made it to the Top 10 piracy charts.

TorrentFreak has released the much awaited piracy chart which list the ten most pirated video games in 2008. CyberPanda is not very surprised that Spore tops the piracy charts. The number of illegal dowloads of game is reported to be in the region of 1.7 million. The high level of piracy has been linked by many commentators to the DRM associated with Spore: initially users of Spore could only activate the game three times after its installation. Although the DRM associated with Spore has now been amended to allow users to install the game as much as they like, this has not reduced the level of piracy.

This is a very interesting point and one wonders whether the lack of correlation between the new DRM and the level of piracy is due to customer alienation (due to original DRM) or whether it is symptomatic of a bigger phenomenon, namely that the technology on its own is not enough to combat piracy. CyberPanda leans more towards the latter. Many cyber-regulatory scholars have also toll the bells of the demise of law as a tool of control online and have argued that the 'code' or technology is the key to controlling values traditionally protected by law (e.g. intellectual property right). As this case shows, the situation is hardly as simple as that and one is very far from a cyber-landscape where code is key to control.

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Sequel to Wilson v Yahoo UK Ltd & Anor.

The attention of CyberPanda has been caught by the recent lawsuit filed by Interflora against Marks & Spencer and Flowers Direct Online. Interflora has filed the lawsuit against the two defendants on the ground on trademark infringement. The two defendants have purchased certain keywords from Google AdWords including 'interflora' which means that each time a user searches for the term 'interflora', it is directed to the sponsored links to the website of Marks and Spencer and Flowers Direct.

The lawsuit is reminiscent of the recent case of Wilson v. Yahoo! UK Ltd & Anor [2008] EWHC 361 (Ch) which was dimissed by the High Court earlier this year on the grounds that pruchase of the keywords 'Mr Spicy' by Yahoo! did not infringe the rights of the owner of the trademark 'Mr Spicy.' This case was covered in detail by CyberPanda in an earlier publication.

It will be interesting to see whether the Courts will adopt a similar line taken by the High Court in Wilson v. Yahoo or whether this present case will be distinguished from Wilson. The present case has the potential of being a landmark hearing if it is distinguished from Wilson on either a factual or doctrinal ground.