Australia: The Impact of Social Media in the Legal Arena

Everyone knows how far we have come in terms of technology and the impact that technology now has on our daily lives. But just how far has technology come in the legal world? Quite far it seems, and serving court documents via social media such as Facebook may even become the norm.

Back in 2008 Australia was said to have been the first country in the world to allow a party to serve court documents via Facebook but has this finding created a precedent?

A Case of Proven Identity

In the case of MKM Capital Pty Ltd v Corbo & Poyser, the judge ordered that a plaintiff's solicitors could serve a default judgment by sending the defendants a private message via their Facebook pages.

In this case the defendants borrowed money from the plaintiff to refinance the mortgage on their house, but after they defaulted on their repayments the plaintiff commenced Court proceedings against them. The defendants did not defend the action and the plaintiff was granted default judgment for the loan amount and for the possession of the house.

It should be noted that the plaintiff made numerous unsuccessful attempts to personally serve the defendants with the default judgment. The plaintiff then applied to the Court for substituted service and gave sufficient evidence that it was impracticable to serve the documents in accordance with the rules. It was then requested that the Court allow them to serve the defendants via Facebook.

The reasoning behind serving Court documents in person is to remove the likelihood of the defendant claiming they did not receive the documents, or for there to be a mistake in who is actually served. This means that in the Facebook case, the plaintiff was required to prove that the two particular individual Facebook profile pages were indeed the profile pages of the defendants.

The way in which they did this was:

  1. The dates of birth displayed on the Facebook profile pages matched that of the defendants as in the records of the plaintiff;
  2. The email addresses displayed on the Facebook profile pages matched that of the defendants that the defendants' solicitor had on file; and
  3. The "mutual friends" displayed on the profile pages showed that each of the defendants were "friends" with each other.

On the basis of the evidence the Court was satisfied that personal service was not practicable, that the Facebook profiles were in fact the defendants and that the defendants were accessing their Facebook profiles regularly enough to reasonably get notice of the default judgment if a private message was sent to their account.

The Court then made orders that service of the default judgment was effected after leaving a sealed copy of the documents at the last known address of the defendants, sending a copy of those documents to a specified email address and sending a "private message via computer to the Facebook page of the [defendants] informing the defendants of the entry and terms of the default judgment".

The Other Side of the Argument

In Citigroup Pty Ltd v Weerakoon, the Queensland District Court came to the opposite conclusion in relation to the suitability of Facebook as a way to serve Court documents.

In this case the Court was not satisfied that sending the documents to the defendants Facebook page would bring "knowledge or notice of the proceedings to the attention of the defendant".

The Judge held particular concerns about the "uncertainty of Facebook pages" in that "anyone can create an identity that could mimic the true person's identity" and that the information people provide on Facebook did not show "with any real force that the person who created [it] might indeed be defendant".

Therefore in this case the Court did not allow service to be effected via Facebook.

What Lies Ahead?

As we delve deeper into the advanced world of technology and social media, the Courts may well receive further requests for substituted service to be effected via social media. They may also be faced with questions such as what would constitute 'knowledge' of a private Facebook message and what would constitute regular access to Facebook or other social media? Further concerns would no doubt be raised as to the certainty that a particular profile is indeed the person whom the documents must be served on.

Moving forward, each situation will depend on the facts of the case and must be judged on its own merits. The measures that a Court may think are appropriate for effective substituted service could vary from case to case.

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.

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