In recent years there has been a steady flow of stories about the service of court proceedings using Facebook or Twitter, for example. The media likes the novelty of these stories but there is no new law involved.
Certain court documents, particularly those which initiate a case or give notice of a hearing, must be served on the other party. The importance of service is not necessarily that the recipient is aware of the full contents of the documents served or every detail of the case. Rather:
the fundamental purpose of service [is] to give the defendant notice and sufficient warning of the proceedings that he might have to contest. (Dixon J, Royal Bank of Ireland Limited v. Nolan)
Here are some examples of service by social media:
- In 2009 the UK High Court allowed service of an injunction by direct message on Twitter where the message included a link to the full text of the injunction.
- In 2011 a UK county court allowed service of a court document by Facebook.
- Australian courts have allowed service by Facebook and LinkedIn.
- In 2012 a South African court allowed service of a notice to set down a trial by Facebook message, in addition to being published in a newspaper.
- In 2012 the UK High Court allowed the service of a commercial claim by Facebook (AKO Capital LLP & another v TFS Derivatives & others ).
AKO Capital is a good example because some detail is available from a note on the case by Latham & Watkins. This was a claim against a financial services broker for alleged overcharging and the broker wished to join a former employee as a co-defendant. Before granting permission for service by Facebook the Court sought assurances that the account belonged to the recipient and that he habitually checked the account. For example, evidence was given that he had recently accepted friend requests. The Court ordered that the relevant documents could be sent as pdf attachments to a private message and service was deemed to have occurred 14 days after the message was sent.
On the home front, Mr Justice Peart granted an order for service by private message on Facebook in 2012 where the plaintiff was not able to locate an address, contact number or other means of contact for the defendant apart from his Facebook account.
This topic surfaces in discussions of “social media law” and similar areas of law, which brings to mind Frank Easterbrook’s “law of the horse” analogy from the mid-90s.
Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. (Easterbrook FH, ‘Cyberspace and the law of the horse’ 1996 U Chi Legal F 207)
Service by social media is just another form of substituted service. Most court rules internationally require that court documentation is served in a particular form, such as by personal delivery or registered post, but also provide that alternatives can be used with the permission of the court. Irish court rules provide for such “substituted service” and nothing in those long-standing rules limits the potential for service by social media.
There are separate but similar rules for each of the Irish courts (District, Circuit, High & Supreme) which provide that an application can be made to the relevant Court for service in an alternative manner where there is a reason why the usual manner cannot be used.
Like many areas of the law, new scenarios can work with old laws and no update is required. However, as can be seen from the evidence presented by the applicant in AKO Capital, the affidavit which grounds the application for substituted service should include more detail than would ordinarily be the case in a standard application. At the very least the Court should be provided with:
- details of the difficulties in affecting service in the ordinary way and what efforts have been made to do it;
- evidence to establish that the target social media account is owned by the person upon whom service is to be effected;
- evidence to establish that the social media account is active within a reasonable period of the application; and
- details of any relevant technical issues and how they will be addressed (for example, if service was by Twitter direct message, how documents will be accessed by the recipient).
Recent experience in the US suggests that some jurisdictions might not allow service by Facebook alone, for example. The rules in the US states are different from those in Ireland and certainly there is no reason why service in Ireland cannot be effected by Facebook alone, subject to the Court being satisfied on the criteria listed above. If there was a concern about the effectiveness of service, an Irish court could direct some other additional mode of service, as happened in the South African case mentioned above.
The issue of service frequently arises as a potential technicality to defeat proceedings but the Courts can retrospectively deem service to be effective, as can be seen from this reason Supreme Court decision.