In the latest example of cases moving with the times, Ontario Superior Court of Justice has allowed a statement of claim to be served on a defender via social media.
The lawyer was unable to confirm the defender’s current whereabouts in order to serve the claim on the defender’s physical address. Having made several attempts to locate the defender via email and via social media sites, the defender’s Instagram account was found and the lawyer sought permission from the court to serve the claim on the defender via an Instagram private message.
The court granted permission for the claim to be served on the defender through private message on both Instagram and LinkedIn, as well as postal service to the defender’s last known address. The court granted effective service five days later.
Service via social media (in particular via Facebook) has been sought in other jurisdictions.
The New Zealand case of Axe Market Gardens Limited v Axe from 2008 granted permission for court documents to be served on an individual via Facebook whose whereabouts were unknown. The court was satisfied that the defendant been active online through banking transactions.
The Irish High Court granted permission to serve proceedings by way of a private message on the defendant’s Facebook page. The plaintiff in this case was unable to serve the claim on the defendant as he had left Ireland and efforts made by the plaintiff to locate the defendant had been unsuccessful. An affidavit was lodged to demonstrate this. Further the court was satisfied that the defendant’s Facebook page was genuine and used regularly by the defendant.
In the 2012 US case of Fortunato v Chase Bank USA, the US District Court for the Southern District of New York refused to allow service by email or Facebook message. The court stated the plaintiff had not provided enough facts in order for the court to have sufficient certainty that the defendant maintained the Facebook account in question.
It is clear from these cases that courts in the various jurisdictions required evidence that the individual had been active on their social media account in order for them to allow service by this channel.
Can claims be served by social media in the United Kingdom?
The issue of service via social media has only been considered in a handful of English cases, and as yet, no Scottish cases.
In 2009, the English High Court gave permission for an injunction to be served via Twitter (Blaney v Persons Unknown). Following this, in 2011, the same court permitted Facebook to be used in order to serve the claim by electronic means on the individual defendant in the case of AKO Capital LLP and Master Fund Limited v TFS Derivatives and others.
Although a rare occurrence, it is clear that courts are willing to allow service by social media when necessary. With the increasing use of social media, and our increasing digital footprints, it seems only likely that it will eventually become ‘normal’ for claims to be served via social media. Big brother is watching you.
This article was co-written by Emily Wallace (firstname.lastname@example.org).