We appear to be steadily moving closer to the day when process serving over social media becomes common practice, as it already is in Australia and New Zealand.
There have been a few cases in the UK where the serving of documents has been permitted by the courts. With the expected completion of the introduction of the Tribunal and Courts Act 2007 in 2014, will process serving on networks such as Facebook and Twitter become the norm? And is that a good thing?
In the US, a court gave permission in March for the Federal Trade Commission to serve documents on five India-based defendants through email and Facebook. There is also currently a bill in progress in Texas, which, if passed, will make it the first state to approve substituted service via a social media website if the court finds that "defendant could reasonably be expected to receive actual notice" through the site.
It’s already happening here
Here in the UK, the High Court gave legal firm Memery Crystal permission to serve a High Court order via Facebook in February 2012. This followed a similar ruling in March 2011 for the County Court and permission to serve an injunction via Twitter in 2009.
The Tribunals and Courts Act 2007 allows for Notice of Enforcement to be served by "fax or other electronic means”. While this almost certainly just meant email at the time the legislation was first drafted, this clears the way for more widespread service via social media.
But is this a good thing?
There are many cases when defendants appear to “fall off the radar” in their attempts to avoid any part of the legal process. Sometimes, social media is the only place they can be found, and it is relatively straightforward to find out how actively it is being used. Depending on privacy settings, you can also often find out where the person is – we have been able to disprove “I’m not in the country” claims by checking on social media.
Social media is becoming mainstream in business – as a communications tool, for marketing and customer service, market research and recruitment, to name just a few. This is only likely to increase and as systems continue to develop which allow organisations to analyse increasingly large volumes of data from multiple sources (the imaginatively named “big data”), more formal and official interactions with individuals are going to take place within social media.
So, I certainly believe it is an inevitable change. A good one? It certainly needs to be handled professionally and sensitively. A private message, not a public posting; a clear communication of what the defendant needs to do as a result of the service; due diligence checks to have a reasonable degree of certainty that the service will be received and in a timely manner.
Provided the process server has clear guidelines and procedures, then I believe the enforcement industry should use social media to reach defendants they could not otherwise access.
I also think that in five years’ time, people will look back with surprise that we weren’t already doing this in 2013!