Photo by May Gauthier on Unsplash

Lawsuits against various TikTok entities– in particular its parent company, ByteDance Ltd.– have come at a steady trickle over the past several years.  Lately, though, we’re seeing a dramatic surge, as individuals and state attorneys general seek redress over potential privacy violations stemming from the platform’s use and alleged data harvesting by the Chinese government.  The steady trickle is turning into a swift current.

While I take no position whatsoever on their merits, I do take an adamant position on the procedural requirements applicable to these cases.  It’s very simple: if you seek to serve ByteDance at its headquarters in Beijing, you absolutely must adhere to the Hague Service Convention and Chinese procedures (see here for a rundown).  And really, it’s not my position– it’s Sandra Day O’Connor’s position.

For starters, to effect service in China, documents must be translated into Chinese.  Never mind that the platform’s owners and designers are unquestionably competent in English… China’s Hague Service Convention declarations require translation.  Without it, do not pass Go, do not collect $200.

Once you have translations in hand, a USM-94 is in order (see here for a how-to guide), followed by submission to the Hague Central Authority (the Ministry of Justice) in Beijing along with a requisite fee.  The Ministry takes care of service from there, but there’s usually a significant wait– often a year or more– for proof to come back.

It’s exceedingly straightforward, but I urge you– do not try to shortcut this procedure.   You can’t “just hire a guy” to walk the documents into ByteDance’s headquarters.  It’s not valid, under Chinese law or under U.S. or Canadian lex fori, to do it however you please.  If you do just hire a guy, understand that your guy is subject to criminal charges for usurping the authority of the People’s Republic.

That said, there’s actually a better way to go about it– although adherence to the Hague Service Convention is still mandatory, ByteDance is chartered in the Cayman Islands, so it’s perfectly appropriate to serve there, and options are available.  If we use private channels, service in the Caymans is not only significantly less costly (no translation is necessary for service in a British Overseas territory), it’s a whole lot faster and just as legally valid.  You just have to make sure it’s done the right way.