It has been interesting to see how society has adapted to the whirlwind of advances in technology and social media in recent years. Personally, I have often wondered how these advances would affect the world of litigation and what implications they might bring. Well, now it seems the whirlwind has caught up with us and the service of legal documents via social media could soon be the norm!
The law already sets out rules for the service of legal documents (such as a subpoena) in the Uniform Civil Procedure Rules. These Rules state that the defendant must be served personally, however if personal service can’t be achieved and the plaintiff can prove that is the case, then the court may allow substituted service (i.e. bringing the documents to the attention of the defendant by other means, for example leaving them in their letterbox).
It is substituted service that leads to the use of social media as a potential means of serving a defendant with legal documents. For instance, if you have a particularly 'sneaky' defendant who is dodging personal service but you know that they have a Facebook or Twitter account, then the Court may consider substituted service via these means as long as you can prove that:
a) personal service is impracticable
b) the defendant is the same person as the one on the profile (and they created the page); and
c) the defendant accesses the site regularly enough to be made aware of the documents.
Australia first allowed this kind of substituted service back in 2008 and it seems that we set the trend because the rest of the world has caught on - New Zealand, Canada and the UK have now allowed service via Facebook and Twitter.
Despite a widely accepted notion that service by way of Facebook or Twitter is an acceptable means of service, it still throws up many questions - including the issue of what amounts to 'notification' via a social networking site. Whilst this and other questions are being asked, there is no doubt that social media will keep steamrolling into mainstream life and will eventually set itself into the law. It is just a question of how and when it is incorporated!