In what is believed to be the first case of its kind, a Canberra-based law firm has successfully persuaded an Australian court to allow legally binding documents to be served on defendants using the social networking site, Facebook.
The couple concerned had defaulted on their mortgage of over $100,000 and their failure to turn up at the court hearing resulted in a default judgement being passed. Following its judgement it fell to the pursuer to locate the debtors and serve the court papers. After eleven failed attempts to trace the couple, a lawyer at the firm acting for the lender (who had a Facebook account of his own) came up with the novel idea of searching for the defendants on the site. Using the details the female defendant had provided to her mortgage lender (including her date of birth and email address), her Facebook page and that of her co-defendant was located.
In allowing service through Facebook, the judge was convinced that this was a means of last resort as the couple could not be reached at their address or place of employment. This, together with the details used as locators and the fact that the woman's Facebook page also listed her co-defendant and partner as a "friend", was enough to satisfy the judge that the notices had gone to the right persons.
The court stipulated that the papers be sent privately to the individuals on Facebook via email. The lawyer in this case has been widely praised by his fellow professionals in Australia for his ingenious approach to the situation. However the Australian courts do already allow service by way of email so the Facebook move is not such a radical step as it may appear to be to some observers in this country. Earlier this year in fact, an Australian court allowed service of legal papers via text message to the mobile phone of a rugby player who broke his contract and could not be located.
In Scotland, unlike in England or Australia, it is not possible to serve court orders electronically. So it is possible this case will serve to highlight why it is becoming increasingly important for courts to move with the times. Australian courts are seen as some of the most technologically adept in the world meanwhile the Scottish civil court system has operated in much the same fashion for centuries. Indeed a review into the Scottish civil court system is currently under way by the Lord Justice Clerk, Lord Gill. It is widely felt that the review is long overdue and perhaps it will be an opportunity to enable the Scottish courts to reform and embrace advances in technology. After all, electronic methods do have their perceived advantages, for instance service via email may aid in reducing the number of individuals who deliberately evade court citations by steering clear of their registered address and workplace; and "read receipts" on emails would enable court officers to prove valid service.
Facebook itself is no stranger to the legal world and it appears to be intruding beyond that of 'social networking'. Last month a jury member at an English court was dismissed after she posted details about a child sex abuse case and set up a poll on her Facebook page asking her friends to vote whether they thought the suspect was guilty.
The view is that the Australian courts will continue to use Facebook in this manner provided all other methods of service have been exhausted and there is a reasonable likelihood of the notice coming to the attention of the parties concerned.
The couple in this case are certainly going to get a shock when they next visit their respective Facebook pages and discover that their home is being repossessed! It's anyone's guess what new issues Facebook is likely to be drawn into next!
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