Facebook and other social media sites aren’t just for finding out what your friends are up to anymore. The next time you sign into your account, you could find that you’ve been served with legal papers. Certain parties can be impossible to track down – they have no known residence or place of work, and publishing a notice in the local paper doesn’t guarantee they’ll see it – so what other options do we have? Australia, Canada, the U.K., and New Zealand have now determined that a social media site can be used when the court can establish that the account is being actively used and is maintained by the actual person it claims to be.
Service by email has been allowed by some federal courts in the United States since 2000, so it’s only natural that social media becomes the next means. Utah already allows domestic summons/subpoenas by social media; on a case-by-case basis, the courts can allow summons to be served via Facebook, Twitter, or text message.
Texas is currently considering a bill that would allow legal papers to be served via a social media site if:
- The defendant maintains a social media page on the website
- The profile on the social media page is the profile of the defendant
- The defendant regularly accesses the social media page account
- The defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account
In early March, a U.S. District Court judge in New York gave the FTC permission to serve documents to defendants in India via email and Facebook. In that case, the FTC had set forth facts demonstrating that the defendants had legitimate Facebook pages. The court determined that service via Facebook, as a “backstop” to email, would meet the legal standards of FRCP 4(f)(3) – it was not prohibited by the Hague Service Convention, and due process would be satisfied.
Is this fair? How can one establish with certainty that a social media account is owned, maintained, and accessed by the right person? It seems to me that if you can’t serve process on someone in person, any other option is a shot in the dark. If putting a legal notice in the paper is still acceptable (does anyone actually read those?), your chance of the right party actually receiving it doesn’t seem any less likely than sending a message to a Facebook, Twitter, LinkedIn, or MySpace account.