“Are You Being Served?”

Facebook – Are you being served?

Recent developments in Australia and New Zealand concerning the service of legal documents via the social networking website Facebook show the extent to which the internet continues to shape the law.

 Facebook, the popular social networking website which was launched in 2004, has more than 400 million active users worldwide with more than 50% of its active users logging on to their homepage in any given day (employers take note!).   It is fair to say that most users of Facebook and other similar websites such as Twitter and MySpace join the networks to help them stay in touch with friends and family.  However, recent legal developments appear to suggest that members of eg. Facebook may get more than they bargained for if they come up against the wrong side of the law. 

 The courts in Australia and New Zealand are increasingly granting permission for formal court documents to be served via Facebook.  Whereas in the USA, although there is no record yet of the courts allowing formal service via Facebook, prosecutors have already been given permission by the courts to admit evidence obtained from on-line profiles to be used in various types of court proceedings ranging from divorce, sexual harassment and murder cases.

 Service of Process via Facebook in Australia and New Zealand

 In December 2008, The Australian Capital Territory Supreme Court allowed formal court papers that gave notice of default on a loan, to be served on a couple via Facebook after repeated attempts to serve them in person failed.  The Supreme Court acceded to the lawyer’s request (who was acting for the lender) to serve the documents on the couple via Facebook, after several attempts to personally serve them at home and by email failed.   

The couple had failed to keep up repayments on a $150,000 (AUS) (£44,000) loan they had borrowed from a mortgage provider and had ignored previous emails from the law firm and did not attend a court appearance. Further, they were no longer living at their last known address and no longer working at the place given in some documents as their last place of employment.  To all intents and purposes, it seemed that the pair had “vanished”. 

Once the solicitor had clearly demonstrated that the information the individuals had provided to the lender was an exact match to the information provided in the individuals’ profile pages on Facebook, The Supreme Court agreed that a method of service via Facebook was both a reliable and valid way to effect service.  The defendants’ Facebook profiles clearly showed their dates of birth, email addresses and friends lists – and crucially showed that the co-defendants were friends with one another.  However, although the judge granted permission for service via the social networking site, he stipulated that the papers should be sent via a private Facebook email so that other people visiting the defendants’ profile pages could not read its contents.

In March 2009, the High Court in Wellington, New Zealand, ruled that court documents could be served on a man living in Britain through the social networking website Facebook.  In this case, the High Court was told that there were “difficulties” serving papers on the defendant, because his exact whereabouts in Britain were not known.  However, it was known that the defendant had an active Facebook page.  Justice David Gendall granted approval for service of court documents, the first time a New Zealand court has allowed such a step.  Facebook has also been used by the police in New Zealand, when the Queenstown police posted surveillance camera footage of a bungling burglar.  A man was later arrested as a result of the publicity.

Most recently, in June 2010, the Australian Court in Adelaide ordered that Facebook can again be used to serve legal documents.  This time, the “defendant” was an elusive father embroiled in a child support dispute.  The suspected father had a brief relationship with a woman who later gave birth to a child.  No father was named on the birth certificate and then when the mother sought an assessment of child support, her application was rejected for lack of legal proof of paternity.  The mother’s solicitor repeatedly wrote to the suspected father asking him to undergo a paternity test, but he moved regularly and there was no reply.  Letters sent via his parents and current girlfriend met with no response and a process server had no success in delivering the legal documents. However, the elusive would-be parent was a regular Facebook user and as a result, the Australian court ruled that the man could be served properly with the documents, electronically via Facebook.  It was later found that the mother was entitled to an assessment of child support, payable by the man in question.

What it might mean for England and Wales

These decisions will inevitably have an effect in the English Courts. All 3 legal systems are based on the common law and all take notice of each others’ legal decisions. Moreover, recent changes to Part 6 of the Civil Procedure Rules provide that where a claimant has reason to believe that the defendant no longer resides or carries on business at an address, the claimant must take “reasonable steps” to ascertain the address of the defendant’s current residence or place of business.  Social cyberspace seems an obvious next step.

It remains to be seen when the UK courts will follow their Antipodean counterparts and allow service of legal documents via the social networking sites such as Facebook and MySpace, but I think the answer has to be when and not if.  Watch this space for more developments…