Preceding the commencement of any matter in court, there must be an active communication between the parties to the suit. It then becomes imperative on the plaintiff or claimant to cause the defendant to be served with court documents.
This preliminary communication is referred to as ‘filing and service of court processes’. Electronic service of processes for the purpose of this article would mean prior communication between the parties to a suit via electronic means, which includes but not limited to emails.
The contemplation on electronic service of process did not actually begin now. As far back as 1980, the United States Federal courts allowed electronic service of process in New England Merchants National Bank v. Iran Power Generation and Transmission CO 475 T. Supp. 73, 76 (S.D.N.Y 1980) where a group of American plaintiffs were unable to serve processes to Iranian defendants as a result of the diplomatic breakdown between the U.S and Iran. The District court ordered service of process via telex (a form of electronic communication now obsolete). The judge stating, “I am very cognizant of the fact that the procedure which I have ordered in this case has little or no precedent in our jurisprudence. Courts however cannot be blind to changes and advances in technology. No longer do we live in a world where communication are conducted solely by mail carried by fast sailing clipper steamships. Electronic communication via satellite can and does provide instantaneous transmission of notice and information. No longer must process be mailed to a defendant’s door when he can receive complete notice to an electronic terminal inside his very office, even when the door is steel and bolted shut”.
Today, the speed of international communication is frighteningly fast and efficient. Any one hooked unto technological grid via computer or telephone can send a message to a fellow gridder in a matter of seconds. Email and social networking websites such as Facebook, Yahoo and Gmail are spectacularly successful networking websites, such that aged professionals, nonprofessionals and judges all over the world have rapidly embraced electronic communications and social networking technology for a rainbow of reasons, from networking to knitting. Yet not all forms of electronic services are the same. For example, twitter ‘tweets’ are not the same as emails, but Facebook messages are essentially emails using Facebook’s internal email system.
Whenever a new manner of service is authorized it is important to look at the manner of service itself to determine whether it is a reliable method that provides reasonable calculated notice. The benefits of email are obvious and numerous. The overwhelming majority of people in the western world use emails and nearly every business organization has an email address. A mail when opened by the recipient can automatically confirm receipt of an email. In a service of process context, there is a strong efficiency argument for the use of email. An email can be sent for little or no cost and can reach the recipients inbox literally moments after it is sent. However, there are limitations as to how to confirm receipt of an emailed message. Technological problems might lead to controversies over whether the use of technology may make appending documents impossible in some circumstances. The criticism is no longer valid in the face of recent technological advances. A software is now available online that automatically confirms and records receipt of an electronic message when the message is opened. Email service and standardized file formats have eliminated any generalized technological problems with appending exhibits and attachments to emails.
Electronic service remains reasonable. Non-electronic service has serious flaws, far beyond the few that exist with modern electronic services. Postal service is vulnerable to human error resulting in lost mails and deliveries to wrong addresses. Notice by publication also carries imperfection because it can be misprinted. Every manner of service has its problems of inaccuracy. The care, argument and justification behind electronic service of processes is based on reality and pragmatism. Many cases presumably involve defendants who can be served electronically. In these cases, electronic communications are often efficient and a reliable means of service.
It has been argued that there are several problems with permitting service of processes by email. Most of these problems point to one major disadvantage; there is no way to confirm that a defendant actually has notice of a claim against him. In response to this, there is now an easy and free way to automatically confirm receipt of an electronic message. Another argument against electronic service is that email accounts are free to create and a plaintiff or defendant may have dozens of email accounts that go unchecked for years. Likewise, a defendant served via Facebook may never check his or her Facebook account. In this regard, as is the trend in international electronic service of processes, a plaintiff should be required to make some showing that the defendant has recently used the electronic medium that he is attempting to use to serve the defendant. To do so, the plaintiff could show the court a message that he recently received from the defendant via the electronic medium. Depending on the factual circumstance, the court could logically infer from this that the defendant currently utilizes that electronic medium. Moreover, if the plaintiff used an automatic verification service, he could simply present the court with the logged record, showing that the defendant accessed the email that contained the service of process. This argument could also apply to the defendant.
Much has been made of the argument that the plaintiff or defendant could claim that he did not receive the email or that he deleted the message assuming it was junk or spam. He could also argue that he deleted the email containing the service without opening it because he did not recognize the sender. Again, these problems could be overcome by requiring the plaintiff to make some showing that the defendant had used the electronic medium. Then if the defendant has received and responded to an email from the plaintiff, the court could logically infer that the plaintiff’s address was not located as a junk sender by the defendant’s email server and that the defendant should have recognized the sender of the email.
The strongest criticism remaining against electronic service of processes is that it lacks the ritual function that only paper based service can provide; it has been argued that the process server (hand delivery) ensures that services are taken seriously. Hand delivered service of process is stamped into African culture. Hence the popularity of the ubiquitous term ‘you got served’ a phrase that has metamorphosed into one whose urban meaning is street talk for you have been defeated and thoroughly humiliated. This terminology unintentionally highlights the embarrassing and monumental nature of being served with processes and this makes this ritual unique to the common law, this is absent in electronic service of processes.
Though a defendant could still delete an email that he suspects contains a service of process, the very act of deletion would validate the fact that the defendant would have been successfully served when the email went into his email inbox and he became aware it contained a service of process. Deletion would be an ostrich-like attempt to evade. This is analogous to a defendant tearing up paper-based service of process after service was mailed to him or posted on his door.
Electronic service of process is a type of service that will become a huge part of the law, but only when used properly. For instance, if the court makes an order for substituted service (electronically), it must be satisfied that the proposed mode for service would give the party to be served notice of the process. Again, when making or sending an email of service of process, the sender could copy the process to the court and the Registrar and also printing from the sent box for purposes of proof of service. Electronic service of process should be permitted in cases where the defendants have established a connection to an email address such that the electronic service of process is reasonably calculated to apprise defendants of the actions against them. In this case email addresses on sign boards, letter headed papers, complimentary cards and websites should suffice. The wide spread use of smart phones, tablets and other mobile gadgets seems to further justify the argument for a sustained use of electronic service of process in Africa’s judicial system.
For decades in Africa (except for South Africa) the act of serving processes has remained largely unchanged. The legal profession is currently at critical crossroads; it is facing significant challenges to its image and ability to keep pace with technological advances in today’s constantly changing marketplace. The law needs to embrace and not resist change because electronic service of processes would increase efficiency and reliability. We are not foreclosing personal service as it would still be needed because there would be cases where e-service cannot be used. All forms of service of processes are essential to the law to keep it fast and reliable.
In this era of Facebook, Yahoo and Gmail, the African judicial system would be doing itself a great disservice if it refuses to embrace this phenomenal change sweeping across our global communication landscape.