What do you expect to find when you open your Facebook page? A friend request from someone you recently met? Notification you were tagged in a picture with a loved one? How about a summons? Or maybe notice of a default judgment entered against you? The last two may sound fairly outlandish, but the reality may be closer than you think.
Given current legal trends, service of process — at least as a last resort — could soon be effectuated via social networking sites. In fact, a growing number of foreign courts have already allowed service via Facebook — recognizing the inherent benefits such sites offer plaintiffs anxious to serve elusive defendants.
And they’re not the only ones. At least one domestic court has permitted service of divorce papers over social networking sites, in addition to other means.
Like most novel technologies, using social networking sites to effectuate service is fraught with uncertainty. Despite the inherent growing pains, the benefits of using such sites to serve hard-to-locate defendants are undeniable.
Soon may come a time when service via Facebook isn’t the exception — it’s the rule.
To truly appreciate the significance of domestic service via social networking sites, one must go back to the origin of American service law: the U.S. Constitution.
The history of acceptable forms of service under the Constitution’s Due Process Clause illustrates the fluidity of what qualifies as sufficient notice. In 1878, the U.S. Supreme Court in Pennoyer v. Neff held that effective service required defendants to be “personally served” in the forum state.
Seventy years later, this concept became impracticable within our growing nation. So the court expanded it to permit delivery of a summons to a defendant’s “last and usual place of abode.” Seven years after that, in International Shoe v. Washington, the Supreme Court again revamped the standard for service — this time holding substituted service is adequate where it gives “reasonable assurance that the notice will be actual.” This pronouncement laid the foundation for service via registered mail.
Finally, in Mullane v. Central Hanover Bank & Trust Co., the court set forth what has come to be the seminal standard for alternative service: that the means employed be “reasonably calculated” to reach its intended target. Where no available method could satisfy this standard, the form chosen need only be “not substantially less likely to bring home notice than other of the feasible and customary substitutes.” From this most recent decree, notice by publication in a legal newspaper gained a firm foothold as acceptable service.
But compliance with due process is not enough; in federal court, service must also adhere to the mandates of the Federal Rules of Civil Procedure. Specifically, Rule 4 dictates that service may be effectuated by any means permitted by state, federal or foreign law. Importantly, Rule 4 also contains a “catch-all” provision at Subsection (f)(3), which permits “other means” of service directed by the court and not prohibited by international agreement.
Despite such breadth, electronic service of process has only been permitted for evasive international defendants under the current federal rules. But even the existing rules can be interpreted to allow Facebook service in certain contexts.
For example, in 2002, the 9th U.S. Circuit Court of Appeals in Rio Properties Inc. v. Rio International Interlink upheld a default judgment against an evasive Costa Rican gambling website that was served via e-mail after traditional methods proved fruitless. Based on the similarities between sending an e-mail via a private server and sending a private Facebook message, several commentators, including a former federal judge, have opined that between Rio and Rule 4(f)(3), “international electronic service via a Facebook message could easily be ordered by a federal court.”
In what is largely considered a world-first, in early December 2008, the Australian Capital Territory Supreme Court granted a default judgment on a loan and allowed it to be served by private message to the defendants’ public Facebook pages. Following several failed attempts to serve the individuals at home and by e-mail, the court agreed such service was reliable after the information provided matched that on the defendants’ Facebook profiles.
Other courts soon picked up on this development.
In February 2009, a Canadian court allowed service on a defendant by sending a copy of the statement of claim to the human resource department where the defendant formerly worked, and by sending a notice to the defendant’s Facebook page as substituted service.
Less than a month later, a New Zealand court granted leave to serve documents via Facebook on an individual whose whereabouts were unknown. In explaining its rationale, the court observed that the defendant engaged in online banking, used e-mail to correspond with friends and had a Facebook account.
More recently, in March 2011, the Hastings County Court in East Sussex of the United Kingdom, relying on the 2008 Australian decision, allowed a plaintiff to serve a summons on a debtor by way of substituted service via Facebook. Before granting the request, the court observed that the requesting lawyer had exhausted conventional means of service.
Domestically, the most notable support for Facebook service comes from In re the Marriage of Jessica Mpafe v. Clarence Ndjounwou Mpafe, a May 2011 decision from a Minnesota state court.
In Mpafe, the plaintiff had repeatedly attempted to serve divorce papers on her absentee husband, who was believed to have returned to Africa’s Ivory Coast years earlier. No physical address was available. So when the plaintiff offered service via publication in a legal newspaper, the court told her not to waste her time — it was “unlikely” her husband would ever see it. “The traditional way to get service by publication is antiquated and is prohibitively expensive,” the court explained. Taking it a step further, the court stated: “Technology provides a cheaper and hopefully more effective way of finding respondent.”
Accordingly, the court held that “publication on the Internet” was acceptable so long as it followed the same “information and timing requirements that would go into a newspaper.” The court further held that if the plaintiff’s husband contacted her, she must “make every effort to provide him/her with the summons and petition. Otherwise, the information posted via [any Facebook, Myspace or other social networking site] shall be sufficient service.”
Domestic service via Facebook may not be far off.
According to one commentator, “constitutional service of process through new communication technologies generally [begins] by noting the widespread social embrace of the technology in other facets of life.” With more than 800 million active members (half of whom visit the site every day), Facebook seemingly has this requirement covered.
Service laws are designed to adapt to new technologies. The fax machine provides an apt paradigm. New York was the first state to allow service by fax in 1988 — now it’s commonplace. Part of the rationale for allowing such service was the fax had “become overwhelmingly the method of choice for the transmission of documents.” And that, “in common usage, ‘fax’ has been converted into a verb as well as an adjective and noun.” Surely the same can be said of Facebook. Commentators have even observed that the phrase “Facebook me” has become the new “can I get your number” or “look me up.”
Facebook could also be used to improve upon another form of substitute service: service by publication. Ordinarily, courts order service by publication only after plaintiffs have diligently attempted personal service. Service is then permitted in an authorized newspaper or magazine in the county of defendant’s last known address.
But what if the plaintiff cannot find the defendant at his or her last known address? Or what if the defendant has simply left the country, as in Mpafe? There is also no guarantee a defendant will see the published notice.
In effect, Facebook is akin to an electronic newspaper that follows the defendant wherever he travels. Like a newspaper, the general public may view the notice on the individual’s public wall (depending on privacy settings). But even if the general public cannot see it, the individual’s friends will still be aware of the notice — making it more likely the suit will be brought to the target’s attention. Facebook also has interactive qualities print media lacks, such as allowing users to post images or scanned PDFs of actual court documents via HTML links, and offering tools to monitor a user’s activity on the site. Once received, the very act of deleting such links could indicate a defendant’s notice thereof.
Alternatively, plaintiffs could tag defendants via online posts. For example, a plaintiff could write a post stating: “Serving complaint upon John Doe,” and include a link to the complaint. John Doe would then receive notification he was tagged. If he were to untag himself, this too could be construed as a receipt.
Setting aside such benefits, the above legal authorities illustrate the prerequisites that must be shown before substitute service via Facebook will be permitted. First, plaintiffs must demonstrate they have diligently attempted service by other, more “traditional” means. Second, there must be adequate personal identifiers to indicate the targeted online profile does, in fact, belong to the person sought to be served. This could include not only biographical data (such as date of birth), but also e-mail addresses and known online friends. Likewise, the defendant’s evasiveness will impact a court’s decision whether to permit such service. Finally, to satisfy the aforementioned “reasonably calculated” Mullane test for actual notice, there must be a showing that the defendant visits such sites regularly. A user’s wall may provide such information.
Although it may seem exotic now, domestic service via Facebook appears to be the natural progression of notice in our increasingly technological world.
Jeffrey N. Rosenthal is an attorney with the international law firm of Blank Rome. He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving technology issues. He has previously published articles concerning the discoverability of supposedly “private” information available on social networking sites, such as Facebook and Myspace. He can be reached at [email protected].
