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
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
The way in which they did this was:
The dates of birth displayed on the Facebook profile pages
matched that of the defendants as in the records of the
The email addresses displayed on the Facebook profile pages
matched that of the defendants that the defendants'
solicitor had on file; and
The "mutual friends" displayed on the profile pages
showed that each of the defendants were "friends" with
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
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
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 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
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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