With all of our training, precedents and rules, lawyers tend to be the last to adapt to new technologies.
Despite this, 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.
Much like emails in the last decade, courts around the globe have begun to recognize the value of social networks in expediting and managing litigation.
Traditional modes of service
The requirement that defendants be given notice of claims is a linchpin of due process and the proper administration of justice. This does not mean that any particular mode of service must be used, only that the method used be reasonably calculated to provide notice and an opportunity to respond.
Because personal service is not always feasible, Canadian law permits 'substitutional' service by alternate means where appropriate, including service by mail, publication in newspapers, attaching documents to doors and mailboxes, and delivery to the defendant's friends or relations.
As technologies have evolved, so too have permitted modes of service. As one American court famously observed in a 1980 decision involving service by telex,
Courts, however, cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships. 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 at an electronic terminal inside his very office, even when the door is steel and bolted shut.2
Telexes were soon eclipsed by faxes as the dominant means of transmitting documents. Faxes in turn are now yielding their dominant position to emails and 'pdf' attachments.
Personal service remains the default but the rules of procedure across the country grant an exception where personal service is impractical. In Alberta, for example, Rule 11.28(1) permits substitutional service if supported by sworn evidence 'stating why the alternative method of service is likely to bring the document to the attention of the person to be served.'
Case law goes further and requires that the supporting affidavit explain what efforts have been made to locate the defendant and effect personal service, and why prompt personal service has failed.
What is reasonable is fact specific, and will depend on the circumstances of the case, the type and amount of relief claimed, the efforts made to date, and why, in the opinion of the deponent, the alternate mode of service is likely to bring the document to the defendant's attention.
Service by Facebook and similar social networking sites has now been added to the list of options available.
Concerns
Facebook is an Internet-based network that allows users to create online profiles revealing information about themselves which they then share with others online.
Information is revealed in a variety of ways. Users can place 'status' updates about themselves on their profiles; list a wide variety of their likes, preferences and dislikes; exchange text messages with other users; and post messages to other users' profiles.
A typical Facebook profile may include multiple photographs of the user, his name, address, birth date, telephone and email contact information, work and school history, political and religious views, favourite books, movies and other activities, and the names and details of various Facebook 'friends'. A fully completed page may include as many as forty categories of information identifying its owner.
Service by Facebook, like any other form of substitutional service, will only be appropriate where circumstances warrant.
In addition to the usual considerations, one unique concern regarding Facebook is the need to verify that the person maintaining a presence on the site truly is that person. The chances of mistaken identity are reduced however by the range of personal information coupled with photographs posted to a user's profile.
Ensuring timely notice is also a concern. Sporadic postings to the user's profile and changes in his Facebook 'status' may suggest only infrequent use, in which case there may not be due process or timely notice of whatever is served. This can be addressed when applying to the court by including printouts of the defendant's page to demonstrate the number and frequency of updates to the defendant's page.
As with all forms of substitutional service, the test is not whether using Facebook will be 100% effective but whether the means used is reasonably likely to bring the document to the attention of the person served.
Australia and Canada Lead the Way
Australia led the way in embracing service by Facebook with the December 2008 decision in MKM Capital Property Ltd. v. Corbo and Poyser,3 a decision described as "the shot heard 'round cyberspace."4
In MKM, a mortgage lender obtained default judgment against two defendants. Service of the judgment was attempted at their residence and last known place of employment. A private investigator was hired. An ad was placed in the local newspaper. After all of these steps proved unsuccessful, an order was sought for substitutional service by Facebook.
The defendants had Facebook pages with no privacy settings 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. This was enough to satisfy the court that the online profiles belonged to the defendants and that 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 the February 2009 decision of the Alberta Court of Queen's Bench decision in Knott v. Sutherland.5
In Knott, the court allowed substitutional service of a Statement of Claim by sending notice of the action to the defendant's Facebook profile. 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 with the March 2009 decision in Axe Market Garden Ltd. v. Axe.6
In this unreported piece of commercial litigation, a company was claiming against its minority shareholder for taking money from the company's account. Information concerning the defendant's identity was put forward, including the fact that he was living in the United Kingdom (although not an exact location) and that he had a Facebook page. The defendant and his father had been in regular contact via Facebook since the son moved to the United Kingdom. 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 of allowing service by social media.
In Blaney v. Persons Unknown,7 an injunction against an anonymous blogger was served via Twitter. A blogger, Donal Blaney, was being impersonated on the Internet through a Twitter account using his photo and links to Blaney's real blog. A writing style similar to Blaney's was also used. An injunction was requested on the basis that the impersonator was in breach of intellectual property rights. Once granted, the issue became service of the injunction as the defendant was anonymous and difficult to identify. 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 in April 2010, Byrne & Howard8 is an example of the continuing international trend to allow service by Facebook.
Byrne was a family law case involving proof of paternity. The plaintiff applied for substitutional service following attempts to bring the proceedings to the defendant's attention by writing to him at his last known address, his parents' address, sending a letter care of his girlfriend, and using a process server to serve him at his parent's address. After she sent him a message through his Facebook page, the plaintiff returned to court for a final ruling on paternity. When the defendant failed to appear, the court was asked to determine whether proper service had been effected in accordance with the earlier order.
Evidence was put forward of the details of the defendant's Facebook page, which included his photograph, profile information and details of his friends. There was also an electronic confirmation of delivery given by Microsoft Exchange, which was the relevant server, although no confirmation of delivery came from the defendant himself. 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 that the proceedings were brought to the defendant's attention and that he was properly served.
These are but a sampling of instances in which Facebook has been used to effect service or is under consideration for that purpose.9
While it has not yet been allowed in the United States, the trend has certainly garnered interest from the American legal community, both from the bar and those responsible for the administration of justice.
The website maintained by the Utah State Courts10, for example, currently offers up Facebook and other social networks as a means of contacting defendants when making alternative service. In what is no doubt a harbinger of things to come, the site advises litigants:
Serving someone by publishing the summons in a newspaper has been for many years the most common means of alternative service. However, the courts are more frequently using electronic communications and social media to publish the complaint and summons or to notify the person being served that the documents have been published.
Even though you cannot find the person to be served, you may know where they accept communications: email; mail to a friend or relative; a social network, such as Facebook; a text number or phone number; or a Twitter name. With the court's permission, you might be able to send the complaint and summons directly to the person by mail, email or social media.
With comments such as these and the ubiquitous nature of Facebook, it is just a matter of time before state and federal rules of civil procedure are amended to formally endorse this option as well.
What Next?
The enormous popularity of Facebook and other social networks, and their broad acceptance among large portions of the population, offer a creative and inexpensive means of streamlining and expediting at least one part of the process, 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 in cases involving defamation, family law disputes, theft of intellectual property and a host of other litigation in which elusive defendants try to shield their location and availability in the hope of escaping judicial process.
Footnotes
1. S. Leonard Polsky is Litigation Counsel with the Calgary office of MacPherson Leslie & Tyerman LLP, practicing in the areas of commercial litigation and employment law. Stacey Wade is a student at law at the same office and assisted in the preparation of this article.
2. New England Merchants National Bank v. Iran Power Generation and Transmission Co., 495 F. Supp. 73, 81-82 (S.D.N.Y. 1980)
3. MKM Capital Property Ltd. v. Corbo and Poyser, ACT Sup. Ct., 12 December 2008 (No. SC 608 of 2008) See: Bonnie Malkin "Australian couple served with legal documents via Facebook" The Telegraph (16 December 2008) online: The Telegraph <http://www.telegraph.co.uk >; John G. Browning, "Served Without Ever Leaving the Computer: Service of Process via Social Media" (2010) 73 Tex. B.J. 180, at 181; Nicole Shiels, "Welcome, user! (and you're sued)" The Journal Online (14 December 2009) online: The Journal Online <http://www.journalonline.co.uk >.
4. Browning, "Served Without Ever Leaving the Computer: Service of Process via Social Media" (2010) 73 Tex. B.J. 180.
5. Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.).
6. Axe Market Garden Ltd. v. Axe (High Court of NZ in Wellington, CIV-2008-485-002676), cited in Allison Ferguson & Felicity Monteiro, "High Court Allows Service of Proceedings on Facebook" (19 May 2009) online: International Law Office: <http://internationallawoffice.com/newsletters >.
7. This decision is unreported but is cited in Robert Hunt & Mark Simmons, "Service Permissible via Twitter" Herbert Smith Litigation e-bulletin (30 November 2009), online: Herbert Smith e-bulletin <http://herbertsmith.com >. See also Browning, supra, at 182.
8. Byrne & Howard [2010] FMCAfam 509 (21 April 2010).
9. Examples abound: Canada: Justice Cheryl Robertson & Alison McEwan, "Substituted E-Service" (Paper presented to the Kingston and the 1000 Islands Legal Conference, 1 October 2010) [unpublished], available at http://estatelaw.hullandhull.com/E-Service%20paper%20for%20distribution.pdf ); Singapore: Consultation paper issued August 2010 entitled "Use and Impact of Social Media in Litigation" ( http://app.supremecourt.gov.sg/data/doc/ManageHighlights/2586/Public%20Consultation%20Paper%20for%20the%20use%20of%20social%20media%20in%20civil%20litigation.pdf ); Hong Kong: Mayer Brown Legal Update "Service of Process via Online Social Media," ( http://www.mayerbrown.com/publications/article.asp?id=10723&nid=6 ); China: "China service of process and social media", ( http://www.chinahearsay.com/china-service-of-process-and-social-media/ ).
10. http://www.utcourts.gov/howto/service/service_of_process.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
