State Representative Jeff Leach of Texas recently proposed a bill that has generated significant discussion about the utility of social media in litigation proceedings. The yet untitled bill, HB No. 1989, proposes to allow substituted service in Texas through a social media website if a court finds that the social media account belongs to the defendant, is regularly accessed, and such service is likely to result in actual notice.
Texas is attempting to create with legislation a process that courts in Canada, Australia, New Zealand and the United Kingdom have developed through common law. Generally, courts in these jurisdictions will allow substitutional service through social media when all other methods of serving a party are exhausted. Courts consider whether the account belongs to the proper individual, and whether the account is frequently used, such that social media can affect proper notice.
Canadian Rules of Civil Procedure
In Canada, the ability for litigators to serve parties with substitutional means is enshrined in the rules of court both federally and for each province. Despite some nuance between jurisdictions, a brief canvass of the rules in Alberta, Ontario, and British Columbia will show that the approach is generally analogous.
A typical example is rule 11.28 of the Alberta Rules of Court,which states that an application must be supported by an affidavit that sets out (i) why service is impractical, (ii) proposing an alternative method of service (such as Facebook private messaging), and (iii) stating why the alternative method of service is likely to bring the document to the attention of the person to be served.
The language found in rule 16.04 of the Ontario Rules of Civil Procedure provides a nearly identical mechanism for substitutional service:
Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.
Master Dash in Chambers v Muslim (2007) clarified that the Ontario rule requires the applicant to provide proper evidence that (i) all reasonable steps of service have been taken, and (ii) the proposed method of substituted service will have “some likelihood” or a “reasonable possibility” of bringing the action to the attention of the party to be served.
Rule 4-4(1)-(3) of the British Columbia Supreme Court Civil Rules uses slightly different language to achieve the same result, providing a court with the capacity to allow substitutional service if the party being served (i) cannot be found after a diligent search, or (ii) is evading service of the documents.
Therefore, despite some nuance in rules between jurisdictions, the overall Canadian approach to substitutional service is typically congruent. Further, the courts have extended application to include social media. Specifically, when traditional modes of service are impractical, and social media is reliable, courts have the capacity to grant substitutional service through social media.
Most applications requesting an order for substitutional service are not reported and there is little Canadian jurisprudence discussing social media and substitutional service. However, the following two reported Alberta cases do provide some the context within which substitutional service has been granted.
In Knott Estate v Sutherlandthe Alberta Court of Queen’s Bench considered the use of Facebook as a means of substitutional service in a medical negligence case. The defendant was a resident of the University of Alberta Hospital who had assisted in caring for Carol Diane Knott, who had passed away while at the hospital. The administrator of her estate brought this action claiming negligence. The plaintiffs brought an application for an order for substitutional service. Succeeding in this application, Master Breitkreuz ordered that the plaintiffs could serve the defendant, Abdulmutalib Al-Masloom, through a public notice in the Edmonton Journal, providing a copy of the statement of claim to the University of Alberta Hospital, and by sending a notice of the action to the Facebook profile of Abdulmutalib Al-Masloom.
Similarly, in 128005 Alberta Ltd. v Zaghloul the Alberta Court of Queen’s Bench considered the use of Facebook as a means of substitutional service in a case dealing primarily with fraudulent conveyance. In this instance, the plaintiff brought two actions against Hatim Zaghloul; first, an action for a debt of $120,000.00 owed through a promissory note, and second, an action for the fraudulent conveyance by Hatim Zaghloul of a house to his wife. The plaintiff obtained default judgment for the first action on February 16, 2010. To enforce the default judgment the plaintiff commenced the fraudulent conveyance action challenging the transfer of title to the home. The plaintiff obtained an order for service ex juris and substitutional service, allowing service on Hatim Zaghloul by email and Facebook private messaging.
Canadian courts have shown a willingness to allow social media as a means of substitutional service in the course of litigation. As will be shown, this trend not only domestic, but international in scope.
Courts in Australia, New Zealand, and the United Kingdom have also ordered substitutional service through social media. In Australia, the Capital Territory Supreme Court in MKM Capital Pty Ltd. v Corbo & Poyser allowed substituted service of default judgment on certain mortgagees through a private message on Facebook. Personal details in the Facebook page were used to confirm the identity of the party being served. The High Court of New Zealand in Axe Market Gardens Ltd. v Axe granted leave for service via Facebook on an individual whose present whereabouts were not known, but whose frequent access to the internet was proven. In AKO Capital LLP & Another v TFS Derivatives & Othersthe United Kingdom High Court allowed the claimant to serve a claim on an individual defendant via Facebook. The Court in this case had evidence that the Facebook profile belonged to the defendant and that it was frequently active.
As shown above, common law countries are increasingly permitting substitutional service through social media. Common drivers for this trend include the difficulty of normal modes of service as weighed against the prevalence and increasing reliability of social media.
Tips for Litigators
Both domestic and international courts are becoming more inclined to grant an order using social media for substitutional service. However, obtaining such an order requires certain considerations that may not exist when employing traditional means. Counsel seeking such an order should consider the following:
- Ensure that all normal methods of service are exhausted, and that such exhaustion is documented. This will lend evidence to the argument that traditional methods of service are proving ineffective.
- Ensure that the social media account does belong to the party you are intending to serve. This is becoming increasingly significant as the use of social media grows, resulting in multiple accounts with the same or similar identifying information. Such evidence may include an accurate name, location, matching birthdates and a confirmation of identity through a posted picture.
- Provide evidence that the party to be served uses the social media account within a reasonable amount of time. Being able to establish the frequency of use will lessen the courts concern that the use of social media will prove unsuccessful. This may include evidence of frequent Facebook updates, acceptance of friend requests, or frequent Twitter posts.
These factors have been discussed in context above. The respective rules and case law provide a basic framework for those seeking an order of this type. However, it is important to note that this area of law is still being developed, and courts hearing such an application will make their determination as to whether social media is an acceptable means of service on a case-by-case basis.