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Tuesday, September 10, 2013

Service of Process via Social Media - Threat or Opportunity?

An Australian appellate court recently ruled that rapper Flo Rida could not be served via Facebook in a breach of contract lawsuit. Reversing a lower court's decision, the court ruled the social media site was not an appropriate means to serve notice.

This is the second such similar ruling coming out of the Federal court in the last few months.
Those that have followed this Blog for the last few years know I have opined about Service of Process via electronic means and service via social media in particular. Though I firmly believe that the service of process as we know it is rapidly approaching a tipping point where the legal community is going to embrace service by electronic means, I am also firmly in the camp that believes that service via social media should only be employed as a last resort.

The fact is service via social media is totally unreliable as a primary manner of service.  Let me explain… Unless the intended recipient formally acknowledges receipt there is no way to ensure that they received the service if a message were posted to their social media account.  What’s worse is service via social media really only gives the intended recipient an opportunity to know that they have been sued or “notice” that they have been sued/served.  Unless the service documents like a Summons and Complaint are posted intact on the recipient’s social media page or inbox, the recipient is not receiving the actual documents.  I would argue that it is the actual documents with the courts stamp and/or seal that must be provided to the recipient for the service to be lawful.  Service via social media is in my opinion no better than service by publication and is at best problematic.  I would hope that the Courts continue to only consider this manner of service after all other efforts have been exhausted. 

That said, I can envision a better more reliable, trusted and secure method of electronic service that embraces a basic tenant of providing notice and giving a party their due process… the manner of service whether physical or electronic MUST be reasonably calculated to provide ACTUAL notice.
I can envision service by electronic means that embraces that concept and also ensures that it is performed by a person or entity that is a disinterested third party that can attest to the facts surrounding the ACTUAL service event.  This electronic version of a disinterested third party would be responsible for the same role as a physical process server; they would ensure the proper person or entity received the service documents and that they knew what they received and that there was a verifiable audit trail that would hold up in court.  The electronic process server would also provide their client/customer with a proof, affidavit or certificate of service that documented the service event.  That document could also be provided to the courts as formal proof that the service event was performed lawfully. 

This topic has been discussed and debated by process servers, registered agents, attorneys and technologist for more than 10 years.   Someone or some entity will bring this vision to life and it will have a lasting impact on the industry.  Make no mistake it is only a matter of time, the first steps have been documented on my blog.  Here is one example of what is  already happening.  The only question I have is will process servers be a part of that evolution or not…

For more about my thoughts or vision related to this topic “Service of Process in the 21st Century” click here.
 by Jeff Karotkin