Next time you open Facebook, could a summons be waiting for you in your inbox?
It’s a growing possibility. Within the United States, service of process by social media has been receiving increasing attention, as multiple cases have been granted approval for alternate service by Facebook and Twitter.
Using Social Media as an Alternate Method of Service
Service by social media remains relatively uncharted waters with the exception of a handful of cases. Yet it stands to provide a cost-effective and efficient method of alternate service, particularly in cases where a subject is evading service or has gone overseas.
With the evolution of technology, the notice requirement has expanded over the years to include e-mail and even fax—and now social media.
While people may flee to a foreign country or make locating them difficult, one point of contact usually remains—a social media account. We live in a connected society, with over 1.5 billion active Facebook users and 315 million active Twitter users worldwide. While finding someone physically may prove difficult, particularly in foreign countries, social media at the very least provides a medium through which to contact a subject.
Nearly all cases in the United States involving service by social media have used Facebook as means to notify the subjects. Twitter is another social media service front runner, gaining attention this year after a federal magistrate judge in San Francisco approved service on a Kuwait national who stood accused of funding ISIS.
The Pitfalls and Advantages of Social Media Service
A primary concern regarding service by social media is the authenticity of a profile. In the event of a long-term relationship, a spouse could easily create a false profile using the volumes of pictures they’ve amassed. However, simply having a picture that matches the identity of the subject isn’t enough to authenticate an account. All cases where social media service has been approved have required further evidence to prove the account truly belongs to the subject. Part of this proof includes the age of the profile, quantity and history of posts, and instances of direct communication with the subject through the specific social media account.
Similar to service by email, another issue is whether or not the intended recipient actually received the documents. What if a Facebook account was left logged in on someone’s else computer? It’s possible for someone other than the intended recipient to see the notice. These issues arise with any type of service other than personal, including mail and service upon a member of household. There is no guarantee a 17-year-old will pass on the documents to their parent or that a boyfriend didn’t accidentally throw away a piece of mail meant for his girlfriend.
Service of process by social media will never replace the gold standard of personal service. Instead, it should be considered an effective option for alternate service. Publication, one of the most-used methods of alternate service, is not only costly but also questionable in its ability to provide notice.
In Baidoo v Blood-Dzraku, a woman was seeking a divorce from her husband and sought to serve him via Facebook as she was having difficulty effectuating service. The judge in the case, New York Supreme Justice Matthew Cooper, noted in his opinion that traditionally, in New York service by publication is conducted through the New York Law Journal and the Irish Echo. “The chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”
Pursuing Service Via Social Media
If you choose to pursue service by social media, before requesting an order for alternate service, be prepared to provide several pieces of information to the court. Judge Cooper’s opinion in Baidoo set a clear precedent for the information a court will look for when reaching a determination.
How do we know the account truly belongs to them?
Look for any information regarding the age of the account. If the account was created 10 years versus six months ago, the longevity will help to alleviate any concerns about the account being falsified. If your client has messages or communications with the subject, put them together into an affidavit.
In Fortunato v. Chase, the court denied a request to implead a daughter on a lawsuit with her mother using service by Facebook. The court noted the lack of sufficient evidence to prove the profile belonged to the correct individual.
How do we know they’ll get it?
Protecting due process rights is at the cornerstone of process service. The court will want to know how likely the individual is to actually receive the documents. Provide proof the account is indeed active: status updates, picture uploads or the liking of other posts. If the account is private, look for recent profile picture changes.
A Brooklyn judge recently denied a woman’s request to serve her husband by Facebook. Manal Qaza, in seeking a divorce from her husband Abdulla Saeed Hazza Alshalabi, moved to serve her husband by Facebook, as she believed he had moved to Saudia Arabia and the cost for international service or service by publication would be beyond her means. Yet the court noted the husband’s profile hadn’t been updated since April 2014, and so didn’t feel confident the notice would be received.
Why service by social media?
As with any approval of service by alternate method, the court will want to see an affidavit of due diligence. Appropriate attempts should have been made to locate the individual and to serve them personally.
For example, in Baidoo, the defendant had no email address, his last known address was four years old and the postal office had no forwarding address on file. His prepaid cell phone had no billing address linked to it and the Department of Motor Vehicles had no records on him. The plaintiff had made clear efforts to effectuate service, but due to the lack of physical address, it was clear an alternate method of service was needed.
Just as service by e-mail took time to become accepted by the courts and the legal community, so will service by social media. As our society changes and technology becomes an even more integral part of the industry, service by social media could prove to be an effective method of ensuring actual receipt of notice in cases where service is completed by alternate methods.
About the Author
is the director of corporate development at DGR Legal, a leading provider of process service, investigations and other legal support services. She is president of the New Jersey Professional Process Servers Association. Contact Amanda at Amanda@dgrlegal.com.