Service of Documents by Facebook?

An article in this week’s Law Times notes another court decision, this time in Ontario, approving substitute service by Facebook. In other words, counsel showed the court that there was no other reasonable way of getting the documents to the party to be served, and that sending to FB was likely to reach the party.

The author says that this should be the norm.

The requirement for hand-delivered document service, while historically sensible, is somewhat archaic in this electronic age. Successful service should be all about making sure that the person is aware of the document. For those of us who are more present online than offline, receiving vital information electronically is commonplace.

Does this make sense to you? How does one make sure that a person served via Facebook (or another social medium, such as Twitter, etc) is aware of the document? Suppose the person denies having received it, later. Is independent evidence of delivery available?

For that matter, many people on Facebook do not have pictures on their pages. How does one know one has the right John Smith, especially if such service becomes ‘the norm rather than an exception’?

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Comments

  1. This makes good sense to me, especially if service is effected through the private message system where you can see if a person has “seen” the message.

  2. Facebook or other social media or even email as an option for substitutional service, rather than other forms of publication such as newspaper advertisements, makes sense. I think that there is a greater chance of a defendant who is an active user of social media becoming aware of a claim than the more traditional substitutional service methods.

    I also think that Facebook as a normal path for service is inappropriate. Personal service of a claim is a key component of ensuring that actions are answerable with a defence. If technology cannot easily answer the question of “has the person who this claim is against been made aware of it”, then the present system for personal service is still best.

    My opinion; not a lawyer.

  3. Shauna, I am a lawyer, though not a civil litigator, and I agree with you. I don’t have any problem with using FB for substitute service, where the court is satisfied that the usual efforts to find the party (probably defendant) have failed and that there is a good chance – based on evidence submitted in the application for sub service – that the documents will reach the person.

    It’s certainly as good as, probably usually better than, publishing a notice in the local paper that an action has been started.

    My concern was the implication in the original article that this should be the ‘norm’, i.e. for suits without special permission about service. I don’t know of any system in general use where receipt of an electronic communication can be reliably demonstrated. Very reliable assurance of actual receipt seems to me necessary in order to support default judgments and their enforcement. That’s why sub service applications are done carefully (or should be).

    Does anyone think that FB or other social media is acceptable for any service of originating documents in a civil case?

  4. John (and anyone else),

    What if there were an adjustment to the rules that service of a civil claim could be by another method than personal service provided that service is acknowledged?

    Something like – Service of a claim may be by any means. If a claim is not acknowledged in a format that cvan be submitted to the court [here I am thinking a voicemail, email, letter, or fax or some other technology I cannot conceive of at present] by the person served within X days, personal service must be provided. An order for substitutional service may be sought if personal service cannot be made within…

  5. In my experience as a clerk dealing with Family Law this method of substitutional service was very popular. The cost to hire a process server is quite expensive for many self-represented individuals, and often there was an issue of one party living out of province. In these cases, many individuals would refuse to pick up mail or answer the door. Often applicants could show they regularly spoke to the defendant via facebook (through comments, wall posts, or messages), which aided the court in determining whether one could reasonably assume the documents would be brought to the defendant’s attention. I agree that in some cases, this is a much more effective method than posting an ad in the local newspaper (and much cheaper!).

    As mentioned above, if the message is sent via a private message, a message will appear at the bottom of the post stating the date and time the message was read. From my understanding, this message cannot be altered by either party. Proving service might be more difficult if the message is posted as a wall post or comment. If the post is made on a group forum, a message will still appear below each post stating which members of the forum have seen the message. However, if the post is made on an individual’s wall or comment thread, there is no way to prove it was ever read. Although a notification will appear on the individual’s home page (and in some cases be sent to their phone via text or data message), there is no way to prove the individual ever chose to click and open it.

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