We have talked about service by Facebook before. But this is becoming a more accepted form of service for a variety of matters from dissolution of marriage, parenting orders to civil debt.
Advances in technology are certainly shaping the nature of process serving, and although at this stage in many countries the judicial system remains resistant to the use of online digital tools such as Facebook, the reality is that it is only a matter of time before these become a more accepted form of service.
Service by way of Facebook is considered in New Zealand a type of substituted service
Substituted service is when documents have been unable to be served personally on the person concerned in the proceedings, instead the court may accept another, indirect method. This is most commonly via a relative or friend that is believed to know the whereabouts of the recipient. It can also be by way of advertisement in the public notices section of regional and national newspapers. And more recently substituted service has been used to effect service through social media applications like Facebook.
In 2009, the New Zealand High Court ruled that substituted service can be effectively served on a defendant or other party subject to legal proceedings via the social networking website, Facebook. (reference: CIV-2008-485-2676, High Court Wellington, 16 March 2009, Gendall AJ).
Posting on a recipient’s Facebook page may be considered a permissible means of substituted service if evidence establishes that the Facebook page is, 1.) that of the person to be served and 2.) that the persons is actively using their account.
In this new COVID-19 world we are starting to assist more and more clients to serve documents via Facebook
We have found this the case for both Family and Civil proceedings. In some situations we have attempted service on the Respondent/ Defendant and they have actively avoided service. We have been able to establish they are active on Facebook, and have assisted with the application for substituted service. And we have then drawn up an affidavit of service (with screenshots) confirming the time and date that the documents were served. Often the court will issue an order for service by way of Facebook and Email. We now also have a new eService feature available to assist us with this.
But it isn’t always that easy to get the Court to view service effected by way of social media…
“In the United States in 2016 a Brooklyn judge denied a woman’s request to serve her estranged husband with a summons for divorce through Facebook, saying the woman failed to prove her husband was an active user of the platform. The case is quite interesting…
Court papers show that Manal Qaza and Abdulla Saeed Hazza Alshalabi were married in New York in June 2011. Qaza said her husband left the area about two months after their marriage, failing to leave any forwarding contact information. Alshalabi, Qaza said, had been deported.
When Qaza filed for divorce in October 2016, she requested service of summons via Facebook, stating she had made numerous attempts to personally serve him. She said she had contacted family members and searched public records to no avail. Two Facebook profiles believed to belong to Alshalabi listed his location as Saudi Arabia. Because Saudi Arabia is not part of the Hague Convention, Qaza said she could not guarantee personal service in that country, and publishing the summons in a local newspaper would cost her $3,000, which she could not afford. She told the court she had previously corresponded with Alshalabi through one of his Facebook profiles.
In denying her petition for service through social media, New York Supreme Court Justice Jeffrey Sunshine said Qaza failed to submit documentation verifying that the submitted Facebook profiles were valid. One profile had no postings after 2014. Qaza also did not provide the court with screenshots of her reported messages with Alshalabi on Facebook, nor did she submit an affidavit verifying that she knew any of the friends listed on the profile.” Reference: New York Law Journal.
So despite some courts allowing the use of email and social media for service of process, there still are very rigid rules in place regarding this means of service.
Personal service will always be the method preferred by courts
And at Docuserve this is our focus in the first instance. However, if it starts to look like the person can’t or doesn’t want to be found, we keep a detailed report of all efforts to locate them. The more information collected, the more evidence we can provide to our clients if they decide to apply for an application to have the documents served by way of substituted service, whether on social media, or through the more commonly recognised channels.