Service of Process through Facebook

International courts increasingly willing to accept service through Facebook when other methods fail.

Australia

• Rule 116(1) of the Australian Uniform Civil Procedure Rules permit substituted service "where, in effect, there is a practical impossibility of personal service and that the method of service proposed is one which in all reasonable probability, if not certainty, will be effective in bringing knowledge or notice of the proceedings to the attention of the defendant." In effect, attorneys seeking court approval to serve someone via a social networking site would have to demonstrate both 1) an inability to serve the defendant through a more traditional medium, and 2) that service through Facebook offered a reasonable chance of success.
• MKM Capital v. Corbo, foreclosure notice served on couple who could not be found through traditional means. Attorneys were able to match up personally identifiable information on the defendants' Facebook profiles (birth dates, friends, and email addresses) with information disclosed in the defendants' loan applications. Court ordered that service could be perfected by sending a private electronic message, with the legal documents attached, to each defendant's Facebook page alerting the defendants to the entry of the default judgment and disclosing its terms. MKM Capital Property Limited v Corbo and Poyser, No. SC 608 of 2008.

Canada

Judge entered an order for "substitutional service," ruling that the plaintiff could serve one defendant by publication by forwarding a copy of the statement of claim to the HR department where the defendant had formerly worked and by sending notice to the defendant's Facebook page. Knott v. Sutherland (Feb. 5, 2009) Edmonton 0803 002267 (Alta.Q.B.M.)

New Zealand

High Court allowed an individual to be served with process via Facebook in commercial litigation over failed business transactions. Based on the failure of conventional efforts at service because the defendant's whereabouts were unknown, the court consented to service through Facebook. Axe Market Gardens v Craig Axe CIV: 2008-485-2676.

United Kingdom

In September 2009, the High Court allowed an injunction against an anonymous blogger to be served via Twitter. British lawyer and conservative blogger Donal Blaney obtained the injunction after an unknown blogger began impersonating him on the Internet.

United States

No reported decision has been found from a court in the United States allowing service by Facebook or Twitter. Concerns are as follows:

• A person registering for a social networking profile may not be who he or she claims to be
• Infrequent users of social media accounts may not receive actual notice

On the other hand, neither notice by publication nor public posting provide actual notice to defendants, although those methods of service are commonly accepted alternative methods of service. Service by email has also been recognized in New York, Australia, and the United Kingdom.

Additional Resources:

John G. Browning, Served Without Ever Leaving the Computer, Service of Process Via Social Media, Tex. Bar J. (March 2010) (available at http://heinonline.org/HOL/Page?handle=hein.barjournals/texbarj0073&id=1&size=2&collection=texbarj&index=texbarj) 

This article is an excerpt of the written materials from Using Facebook and Other Social Networking Sites as Informal Discovery, a continuing legal education course presented by the ABA Young Lawyers Division at the 2011 ABA MidYear Meeting in Atlanta, Georgia. This portion of the course was presented by Lisa McManus, Web 2.0 Legal Communities Manager at LexisNexis. Other panelists included Min Cho, an associate with Holland & Knight LLP in Orlando, Florida, and Stacie S. Winkler, an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee.