The court noted, however, that the petitioner presented evidence that the respondent “maintains an active social media account with Facebook.” Finding service on respondent at her last known address to be “impracticable,” the court permitted service on her via Facebook. The court acknowledged that no other published New York state decisions had authorized service of process via social media but cited courts in other jurisdictions that had permitted service on parties via Facebook “in connection with other means of service.” Whoshere, Inc. v. Orun; FTC v. PCC Care.
Ruling that service through the respondent’s Facebook account provided the “best chance” for her to receive notice, the court ordered the petitioner to serve his petition and summons via Facebook and via respondent’s last known address. Among other considerations was recent activity on the respondent’s account in the form of “likes” (a method by which Facebook users express opinions).
Is Service via Facebook Reliable?
“The touchstone for ordering substitute service is the showing that more effective service is not available,” offers Jeffrey G. Close, Chicago, IL, ABA Section of Litigation Pretrial Practice & Discovery Committee. Although courts have more typically allowed for notice by publication in a newspaper, “notice by publication would be less certain and Facebook is not just a substitute for notice by publication, i.e., that the petitioner would post on his page with the ‘hope’ that the respondent would see it. It was important to the decision that petitioner could actually ‘message’ the notice to respondent, similar to email, and confirm it was ‘seen.’ Facebook, accompanied by mail service, appears to be fairly certain of actually reaching respondent in this case and is consistent with due process under the circumstances described in the opinion,” Close continues.
Another Section leader believes the problem with service via Facebook lies in who actually reads the message. “Resorting to service via Facebook can be inherently unreliable because, like email, Facebook does not provide proof that the message was, in fact, received or read by the intended party. As a result, Facebook provides a level of constructive notice for a potential point of challenge a litigator will want to avoid,” cautions Joan K. Archer, Ph.D., Kansas City, MO, Section of Litigation Council member and former cochair of the Section’s Pretrial Practice & Discovery Committee.
Authenticating Service Using Facebook Can Be Problematic
“Properly authenticating a social media account can be problematic and provable only if the party served actually shows up in court. Fake social media accounts exist, it is easy to have your social media account hacked, and an account owner can block a message such that the sender will not know that the intended did not receive the service. These circumstances make it difficult to prove who is, in fact, the creator and author of the account, and that [the recipient] received and read the legal papers,” says Archer.
A New York federal court has echoed these concerns, refusing to permit service via Facebook because of insufficient proof that the defendant maintained an account. Fortunato v. Chase Bank USA, N.A. The Fortunato court noted that “anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the court to confirm” service. The Court of Appeals of Maryland likewise rejected an attempt to authenticate a defendant’s alleged Facebook account because of the “potential for abuse and manipulation of a social networking site by someone other than its purported creator.” Griffin v. State of Maryland.
Finding that Facebook messaging alone is “not reasonably certain to inform those affected,” the Oklahoma Supreme Court has held that a mother’s use of Facebook is insufficient to message a legal notification to the father that she is pregnant before putting the baby up for adoption. In re Adoption of K.P.M.A.. The dissenting justices disagreed, believing that Facebook is no less reliable than other forms of communication, whether electronic or in-person: “[f]ace-to-face discussions can be denied, letters can remain unopened; and faxes can be lost.”
The Future of Service via Social Media
“The impact service via social media will have on the judicial system will depend upon how many attorneys seek to embrace Facebook as an alternative means of service. Given the problems of proving receipt and authentication when using Facebook, it is not a reliable practice tool, and therefore, in its present state of the art, it is not likely that service via social media will flood the legal system,” says Archer. But Close believes otherwise: “It strikes me that service via social media might be authorized by statute or rule in the not-so-distant future, much as facsimile and subsequently email service of papers has been.” Texas and Florida already have enacted rules permitting service via email, and recently a Texas legislator proposed a bill—not ultimately voted on—that would have permitted substitute service via social media.
Brian Zemil is a team editor for Litigation News.