With the overwhelming popularity of social networking sites such
as Facebook, MySpace, LinkedIn and Twitter as methods of
communication and connection – both socially and within the
business community – it is not surprising that social media
is now being considered by the courts in the context of service of
While courts so far have been cautious – as demonstrated
by a recent NSW Court of Appeal decision we look at below –
it is clear that social media presence and activity could, in some
circumstances, be used to support service of important court
When commencing a court case, usually the court rules require
that the originating court process be served personally on the
Where this cannot be done, a party can seek an order from the
court that the originating court process be served in another way
(known as an application for substituted service).
The court will only grant an order for substituted service where
the judge is satisfied that:
it is practically impossible to personally serve the person;
the method of substituted service proposed is one that is
reasonably likely to bring the person's attention to the
There have been a number of cases recently where courts have
accepted, on a substituted service application, that service can
take place via a social networking site.
Recently, NSW Court of Appeal gave further guidance on the issue
in the case of Flo Rida v Mothership Music Pty Ltd 
NSWCA 268. In that case, the NSW Court of Appeal was asked to
consider whether service on international rapper Flo Rida, via his
Facebook page, was effective service of an originating court
The Flo Rida Case
In 2011, Flo Rida was contracted to appear at Newcastle's
music festival 'Fat as Butter'. He failed to appear at the
festival, despite having already been paid $55,000 in advance to
The promoter of the festival, Mothership Music, commenced court
proceedings against Flo Rida for breach of contract, claiming the
performer fee of $55,000, as well as other damages.
Attempts at personal service of Flo Rida were unsuccessful due
to the level of security around the star.
In April 2012, the NSW District Court made an order for
substituted service, which permitted Mothership to serve Flo Rida
with the originating court process via his Facebook page.
Flo Rida did not respond to the court documents served via
Facebook. Accordingly, judgment was given against Flo Rida to pay
damages in excess of $400,000 for loss of revenue suffered by
Mothership at the 2011 festival, loss suffered for poor ticket
sales, and loss of sponsorship revenue for the 2012 event.
Flo Rida subsequently appealed the decision to the NSW Court of
Appeal, claiming service on him via Facebook was ineffective.
On 20 August 2013, the NSW Court of Appeal upheld Flo Rida's
There were a number of reasons why Flo Rida was successful but
interestingly, the NSW Court of Appeal found that the order for
substituted service via Facebook should not have been made because
there was insufficient evidence to establish that:
the Facebook page was in fact that of Flo Rida; and
a posting on the Facebook page was likely to come to Flo
Rida's attention in a timely fashion.
The Court indicated that mere assertions as to these matters
were not sufficient.
While the evidence put forward in the Flo Rida case was not
sufficient to support an order for substituted service, gaining
evidence of the type needed might not be difficult.
One would not expect to be served with a serious court process
via hectic Facebook traffic, and to have that lead to a court
judgment for a significant sum of money.
Therefore, from a business point of view, it gives food for
thought as to the procedures in place for maintaining and
monitoring social media sites by appropriate personnel.
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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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