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Social Media Issues – A ‘Hot’ Topic at the Electronic Litigation Conference 2011

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Interview by Sylvia Low

Lim Seng Siew will chair a panel discussion on the “Use and Impact of Social Media on Civil Litigation” on Day Two of the Conference. The other members of the panel are Mr Thio Shen Yi, SC from TSMP Law Corporation, Mr Wong Siew Hong from Infinitus Law Corporation, Mr Rama Tiwari from Autodesk and Professor Eliza Mik from the Singapore Management University.

Seng Siew was a senior director at the Singapore Academy of Law, overseeing the Legal Technology Cluster. Seng Siew has many years in private practice and is familiar with the concerns and practical issues faced by stakeholders and the users of IT systems in the legal and justice sector. He is now a consultant lawyer at Ong Tay & Partners – whose law firm blog at http://ongtaypartners.com (now https://otp.sg/ ) is an excellent source of legal commentary and musings on the legal practice in Singapore.

The rash of “celebrity” court cases involving twitter and facebook in the media recently, augurs a worldwide trend that will surely prove to be a HOT topic at the Conference. Given the pervasiveness of social media, it is not surprising that legal justice systems have begun to recognise social media as a viable tool for effecting service of process and as admissible evidence for use in legal proceedings.

I had an opportunity to interview Seng Siew last week for a sneak preview of what’s to come – of paramount interest is the “White Paper” which will be presented at the Conference following the Supreme Court’s Consultation Paper in August 2010 focused on the possibility and effectiveness of using social media for purposes of substituted service of documents in Singapore, service of originating processes out of jurisdiction, and the discovery, preservation and inspection of evidence on social media platforms.

We asked Seng Siew what he considered the biggest challenges for lawyers grappling with the use social media in civil litigation – “Understanding the nature of the beast” was his considered answer. How will lawyers effectively tap into social media platforms for evidence or a means of substituted service if they have not used Facebook or Twitter themselves? For example, how do you serve a 10-page writ on Twitter which allows a maximum of 140 words per tweet? To successfully obtain an order for substituted service, the court has to be satisfied that there are reasons to believe that the documents served via the online social media will come to the defendant’s knowledge – will a private message to the Facebook account holder suffice? or do you need to post it on his “wall”? How do you “capture” evidence on Facebook or Twitter when the content is dynamic and constantly changing? What is required to prove authorship of “anonymous” posts?

Enforcement is another issue – Seng Siew reminds us, launching into a gleeful discussion of the Ryan Giggs “sexpose” on Twitter. The impotence of Giggs’ “super-injunction” in the face of 75,000 twitterers highlights the limitations of the law in countering the forces of social media users across jurisdictional boundaries.

Seng Siew ended the interview by highlighting another unique development in the intersection between social media and the justice process – the possibility of “live” coverage of court proceedings via Twitter feeds. In the UK, the Lord Chief Justice had, in December 2010, issued an interim guideline for the use of live text-based forms of communications from the Court, effectively approving of the use of Twitter as a form of Court reporting as long as it did not interfere with the administration of justice. It will be interesting to see if the Courts in Singapore would take a similarly sanguine view.

Seng Siew’s session on “Use and Impact of Social Media on Litigation” will take place at 12.30pm on Day 2 of the Conference – See you there!