As discussed in our article entitled “What is ‘service of documents’ in civil litigation?”, serving certain court documents via email can be acceptable under the rules of court. You may then ask, can I serve court documents via social media such as Facebook, Twitter or Instagram. As with so many good questions, the answer is – well, it depends. 

In 2013, the New South Wales Court of Appeal (‘NSWCA’) addressed whether service of court documents or information could be effected upon none other than Flo Rida. Flo had agreed to perform at the “Fat As Butter” music festival in Newcastle in 2011 but failed to show up.

When Flo was next in Australia, the festival organiser sued him for breach of contract but was unable to serve the originating process personally. Accordingly, to bring the court proceeding to Flo’s attention, the festival organiser obtained an order for substituted service.

What is Substituted Service?

Where for any reason it is impractical to serve a document in the manner required by the rules of court, a court may order such steps be taken to bring the document to a person’s attention. Upon fulfilment of a court order for substituted service, a document may be deemed to have been served upon a person (for the ultimate purpose of entering judgment against him/her).

In Flo’s case, the order for substituted service required that the court documents be sent to him via email and “via the provision to do so appearing on his Facebook page…”, both of which were done.

On appeal, the NSWCA found that for jurisdictional reasons the order for substituted service should not have been made. However, more interestingly for our purposes, the Court stated that:

“The evidence…did not establish, other than by mere assertion, that the Facebook page was in fact that of Flo Rida and did not prove that a posting on it was likely to come to his attention in a timely fashion…”

What Needs to be Shown to Obtain an Order for Substituted Service via Social Media?

Whether by a Facebook private message, Tweeting, Instagram direct inbox or perhaps even Tinder, the method selected to effect substituted service must likely bring the documents to the relevant person’s attention.

It will then be necessary to show the following:

  1. That the social media account to which the message is being sent actually belongs to the relevant person; 
  2. That the person actually still uses that social media account at the present time; and 
  3. The specified social media platform must also bring the document/information to the person’s attention in a timely fashion.

Although social media postings are transmitted instantly, you must inform the court as to how often the account appears to be accessed and (thanks to Facebook) how quickly and likely the person is to respond.

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In this day and age, where celebrity (and non-celebrity) Twitter/Instagram/Facebook accounts can quite easily be proven to be managed by their owners (who statistically access them very regularly), it is reasonable to assume that service of court documents via social media may just go viral. Questions? Get in touch with our dispute lawyers on 1300 544 755.

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