Service by Facebook
This article, co-authored by Stacey Wade, appeared in the September 30, 2011 issue of The Lawyers' Weekly.
The pervasive nature of social networks on the Internet is giving lawyers a powerful new tool in serving legal process on those who play hide-and-seek with the legal system.
Traditional Modes of Service
Across the country and in other jurisdictions that recognize the rule of law, the requirement that defendants be given notice of claims remains a linchpin of due process and the proper administration of justice.
Despite this, as technology has evolved, so too have permitted modes of substitutional service where circumstances warrant. First there was telex. Then fax and email. Now service by Facebook and social networks are being increasingly recognized as available options.
Concerns
As with all forms of substitutional service, the test is not whether using Facebook will be 100 per cent effective but whether the means used is reasonably likely to bring the document to the attention of the person served.
In the case of Facebook, however, concerns include the need to verify that the person maintaining a presence on the site truly is that person and ensuring timely notice. While unique challenges, these obstacles have not prevented creative lawyers and willing courts from using Facebook to their advantage.
Australia and Canada Lead the Way
Australia led the way in embracing service by Facebook in MKM Capital Property Ltd. v. Corbo and Poyser, (ACT Sup. Ct., (No. SC 608 of 2008).
In MKM, a mortgage lender obtained default judgment against two defendants. After attempts at personal service failed, an order was sought for substitutional service by Facebook.
The defendants had Facebook pages and had posted their birth dates, lists of friends and email addresses. This information matched the defendants’ loan applications and the two were even “friends” on Facebook. The court was satisfied the online profiles belonged to the defendants and service on Facebook would be sufficient notice to them. The order was granted and the stage was set for courts around the globe to follow suit.
Just months later, Canada did just that in Knott v. Sutherland ((5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.)).
In Knott, the court allowed substitutional service of a statement of claim by Facebook. This was not done in isolation however, and was to be accompanied by publication in a newspaper and forwarding a copy of the statement of claim to the human resources department where the defendant formerly worked.
The following month, it was New Zealand’s turn in March 2009 in Axe Market Garden Ltd. v. Axe (High Court of NZ in Wellington, CIV-2008-485-002676).
In this unreported commercial litigation, a company claimed against its minority shareholder for taking money from the company’s account. The defendant and his father had been in regular contact via Facebook. This was enough to address the court’s concerns regarding certainty of identity and substitutional service was allowed.
That same month, England joined the trend.
In Blaney v. Persons Unknown (unreported) a blogger, Donal Blaney, was being impersonated on the Internet through a Twitter account using his photo and links to Blaney’s real blog. An injunction was requested and obtained on the basis that the impersonator was in breach of intellectual property rights.
The issue became service of the injunction as the defendant was anonymous. The offending Twitter page was used for service because it apparently belonged to and was regularly visited by the defendant and it was possible to monitor via Twitter whether the defendant had received the injunction. The message was sent to the defendant’s Twitter account with a link to the full text of the injunction.
Returning to Australia, Byrne & Howard ([2010] FMCAfam 509) was a family law case involving proof of paternity. An order for substitutional service by Facebook was granted following various attempts to bring the proceedings to the defendant’s attention. When the defendant failed to appear, the court was asked whether proper service had been effected.
Evidence was put forward of the details of the defendant’s Facebook page. There was also an electronic confirmation of delivery. The court put emphasis on the evidence that shortly after the service message was sent to the defendant’s Facebook page, he took his site down.
Based on this information, the court found the proceedings were brought to the defendant’s attention and he was properly served.
What Next?
The enormous popularity of Facebook and other social networks offers a creative and inexpensive means of streamlining and expediting the service of documents.
Service by Facebook is not a panacea, nor should it be held out as the primary means of service, but we can expect increasing use of this option whenever elusive defendants try to shield their location and availability in the hope of escaping judicial process.