By Alana Gibson Chief Operating Officer | DGR, AAML NJ Silver Sponsor
You’ve been served—by Facebook.
While personal service is still the gold standard of service of process, electronic service of process via social media has become much more commonplace over the years. Back in 2011, a judge approved the first case of alternative service via Facebook after a defendant in a divorce case couldn’t be located or contacted through postal mail. Since then, we’ve noticed a significant uptick in court orders for alternate service by social media coming into our office from throughout the country.
Here’s what you need to know about the background of these requests and what to expect.
Social media can be an effective form of alternate service
When a spouse simply walks out on their marriage without providing a new address or is evading service, the legal processes for divorce get complicated. Without a known address, personal service becomes much more difficult. Social media provides an opportunity for an alternate method of service that’s likely to reach the recipient.
When the individual to be served has left the country, international process service is the next option for service. This means going through either formal or informal methods depending on the need to enforce a judgment. However, another option when not seeking to collect a judgment aside from service via agent could be social media service when appropriate according to the rules of each country.
These conditions can make service by social media a better option. After all, as the court stated in Noel B. v. Anna Maria, Facebook has no geographical constraints and currently has 2.91 billion active monthly users, with almost 90% outside of the US and Canada.
But service via social media isn’t just for international service. Since the early 2010s, there have been numerous cases that have established firm precedent for alternative service via social media in cases pertaining to matrimonial law.
For example, in Baidoo v. Blood-Dzraku, the application for alternative service was submitted under a New York rule that permitted a court to order any method of service that was appropriate for a case’s circumstances, as long as it could be shown that other options were “impracticable.”
Due process requires any service method devised by a court to be reasonably calculated to notify the defendant of the court proceedings. As noted in Baidoo, publication service, though it has long been permitted, usually doesn’t provide a reasonable probability of actual notice.
Presiding New York Supreme Justice Matthew Cooper even commented on the common use of publication in the Irish Echo and New York Law Journal in New York County in his opinion, saying, “If that were to be done here, the chances of the defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”
Given that reality, when service by publication is the last available option, it begs the question whether service via social media may in fact be the better choice.
Requesting alternate service
In New Jersey, a family court plaintiff can request permission from the court to use an alternative method of service if a spouse has no known address. This is usually either substituted service by a third party who can serve divorce papers to the defendant; or service by publication, usually in a newspaper in the county where the action is filed.
Before a court will permit the request, however, the plaintiff must provide an affidavit of diligent inquiry that demonstrates the completion of specific efforts to locate the spouse. Even after years of court precedent, personal service is the preferred method for service of process by far. If there’s a known address or ability to conduct an investigation to locate a new address for an individual, courts still require that the established steps of due process are followed prior to approving service via Facebook.
When seeking alternate service via Facebook or any other social media platform, it’s important to have conducted the appropriate due diligence prior to requesting. This includes searching for forwarding addresses, potentially bringing in a private investigator, and more.
Pursuing service through social media
In cases where service via social media has been ordered, the judges clearly articulated that they viewed this method as useful and were unopposed to bringing technology into legal practice when necessary.
In each case where service via social media has been ordered, there were several things the courts looked for prior to approving the request:
Is this the right individual?
Many critics of the practice of service via social media point out that it’s easy to create fake accounts. This is true—and it means that it’s important to do the necessary research. Clients should be prepared to submit affidavits of communications with the defendant through that account. If that’s not available, then other concrete evidence the account belongs to the defendant should be produced, such as regularly posting pictures of daily activities or updates containing information that’s not common knowledge.
Why is social media a better method than others?
This goes back to the need to attempt personal service first. This type of service will only be approved once other options have been exhausted.
In Baidoo v. Blood-Dzraku, the wife sought a divorce from her husband whom she didn’t live with or see for five years after the marriage. Serious attempts were made to locate the husband.
- After moving in 2011, the post office had no forwarding address for him.
- His pre-paid cell phone company was contacted and an investigator was hired to locate him.
These efforts failed to turn up an address for him. In situations where there’s clearly no other way to effectuate service, service by Facebook would seem to be a logical path forward given that the wife and husband communicated regularly on Facebook Messenger.
Can we be sure they will receive notice?
Receiving notice and establishing jurisdiction are key elements of service of process. The courts want to be confident that an individual is likely to receive the documents. That’s why it’s important to have proof that a subject regularly uses their social media account, whether it’s for using direct messages, posting updates, or interacting with other account users.
Account authentication is key
As noted above, fake accounts are a real concern when it comes to service of process via social media. The Baidoo court addressed this by requiring the plaintiff to submit an affidavit verifying that the defendant owned the account in question.
She provided copies of messages between herself and the defendant and identified photos of the defendant on the account. While this wasn’t absolute proof of ownership, the court determined that it was sufficiently persuasive.
The court also required her to show that the defendant logged into the account on a regular basis. Another step the court took to ensure that the account was legitimate and belonged to the defendant was to require that the notice be posted three times, at weekly intervals. The plaintiff also had an active mobile phone number for the defendant, making voice mail and/or text available as a backup notification method.
While the effort required to authenticate account ownership and ongoing use is significant, it doesn’t appear to be more strenuous than the work that goes into getting service via publication approved and completed. What’s more, in most cases it’s likely more effective.
Pitfalls of e-service
Service of process via social media has its pitfalls. It’s possible that an account is fake, or that the owner stops using the account, or that a message might go to the wrong person. However, the measures used in Baidoo offer a degree of security. It’s also important to point out that the method under discussion is Facebook’s private instant messaging service, Facebook Messenger, and not a public post.
When a private message is opened on Facebook Messenger, Facebook provides a “seen” message with the time and day the message was received. It is of course still not possible to prove that the person who saw it was the account owner—for example, a friend or family member may have access to a defendant’s account and open the message. This is also the case with email.
For these reasons, e-service is by nature less reliable than personal service or mail service with return receipt requested. Even considering these pitfalls, though, notification by instant message seems to be more reliable in this day and age than notification via publication.
What’s more, not all cases will get approved. Take Fortunato v. Chase as an example. Fortunato claimed the credit card debt in her name was actually accrued by her estranged daughter. In an effort to implead the daughter on the suit, Chase was unable to locate an address and requested to effect service through Facebook. Yet the court denied the request, stating there wasn’t enough evidence that the profile belonged to the correct individual and “the Court’s understanding is that anyone can make a Facebook profile using real, fake or incomplete information.”
Service of process via Facebook as an alternate service method has become more widely accepted these days, and its use suggests that it’s a more effective option than service by publication. Prior to pursuing this service method, however, it’s critical to demonstrate necessary due diligence in attempts at personal service as well as proof of ownership and frequent use of the Facebook account.