Facebook filings

Receiving important documents by email is commonplace these days; picking them up on social media sites is less common.

But things are changing, after Stephenson Harwood became the first UK law firm to serve a High Court claim over Facebook (see story).

The method of service does have precedent. In late 2008 Australian firm Meyer Vandenberg claimed to be the first in the world to use Facebook to serve a court notice on two defaulting borrowers, having failed to find the defendants in person. The following year, across the Tasman Sea, lawyers in New Zealand served court papers via Facebook because they did not know the exact whereabouts of defendants.

The use of Facebook, often described as the world’s most popular social media site, is perhaps a natural progression from other electronic means of communication. Practice rules already allow electronic communication with parties in litigation – and messaging via Facebook is, after all, not very different from sending an email. Past cases have also seen the delivery of documents over text, say lawyers, although this has attracted rather less media attention.

To effectively serve documents over Facebook, the main challenge appears to be to convince the judge that you have the right profile for a defendant. In April 2008 Judge Ryrie in Australia’s Queensland District Court dismissed an attempt to serve documents over Facebook because, she said: “I’m not so satisfied in light of looking at the uncertainty of Facebook pages, the fact that anyone can create an identity that could mimic the true person’s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.”

In the UK case, Stephenson Harwood had to prove that it had tracked down the right defendant to serve papers on. The Fabio de Biase in the case is one of 17 on Facebook, but there was sufficient evidence to convince Mr Justice Teare of his identity and that the account was active.

The firm was able to serve the papers as de Biase allowed messaging from accounts he was not a friend of, and Facebook permits users to attach documents to their messages. Similar sites such as LinkedIn do not allow attachments.

Short of the sites suddenly losing popularity, it seems likely that future cases will also turn to Facebook and other forms of new media, such as Twitter, as a conduit for serving documents.