Email and the Hague Service Convention Revisited

On a bunch of occasions I’ve expressed my view that service by email is impermissible under the Hague Service Convention. By this I mean that you can’t serve process via email if (1) the defendant is in a Hague Service Convention state; (2) the defendant’s address is known (such that the Convention applies); and (3) the law of the destination state does not provide for service by email so as to bring Article 19 into play. The basic idea is that the Convention is exclusive, so if it applies, you have to use one of the methods it permits, and email just isn’t on the list. I have given reasons for thinking that the closest possibility, service by postal channels, does not apply. In short, it does not seem to me that ordinary private email can fairly be said to be within the “postal channel,” which is the language of Article 10(a):

Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.

David Stewart, a former State Department official and now a professor at Georgetown, pointed me to an article he wrote with Anna Conley in 2007 that takes a different approach. David P. Stewart & Anna Conley, E-Mail Service On Foreign Defendants: Time For An International Approach? 38 Geo. J. Int’l L. 755 (2007). Stewart and Conley assert—correctly, I think—that there is a functional equivalence between mail and email, and they point to the 2000 Hague Conference Special Commission report (which, strangely, is not available on the Hague Conference website devoted to the Service Convention and was therefore unknown to me) in which the Special Commission suggests reading the word “send”, in Article 10(a), to apply to email.

This seems right to me as far as it goes, but in addition to the word “send”, it’s necessary to consider the words “postal channel.” My view is that e-mail is permitted by Article 10(a) if the postal service of the sending state has an “e-post” service, as contemplated in Article 14 of the Universal Postal Convention. In the absence of such a service, it seems a stretch to me to say that if I use an ordinary commercial email service such as gmail, and I send you an email, I have sent it to you via the “postal channel.” Stewart and Conley recognize the failure of the postal service to provide such a service, but their discussion of the issue revolves around the reliability of email, not whether email is part of the postal channel.

This doesn’t mean I’m opposed to the idea of service by email. I simply don’t think the language of Article 10(a) in its current form authorizes it. As Stewart and Conley note, there is nothing stopping destination states from serving process by email under Article 5 when their internal law permits it.

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