By its own recent estimates, Facebook currently boasts around 1.06 billion active monthly users. While many of these users grapple with questions about their privacy settings or news feed notifications, a growing trend indicates that they might have a new issue to contend with: the possibility that they could be served with legal process via their Facebook account.
Service by Facebook was addressed in a recent decision from the U.S. District Court for the Southern District of New York, wherein the Court authorized the Federal Trade Commission to serve multiple defendants using email and private Facebook messages. In Fed. Trade Commission v. PCCARE247 Inc., 2013 U.S. Dist. LEXIS 31969 (S.D.N.Y. March 7, 2013), Judge Paul Engelmayer detailed his reasoning for granting the FTC’s request to be permitted to serve multiple foreign defendants with case filings (other than the Summons and Complaint) by email and by Facebook. Judge Engelmayer outlined the multiple attempts that the FTC had made to effect process on five Indian defendants the FTC had accused of engaging in a scheme to induce consumers to pay for unnecessary computer repairs, noting that conventional service required by the Hague Convention had not been completed by the Indian Central Authority more than five months after it had been sent by the FTC. The defendants had actual knowledge of the lawsuit (and had in fact at one time appeared by counsel therein), and the FTC introduced facts establishing a high likelihood that service by email and Facebook would provide the defendants with actual notice of the filings. The Court found it significant that the documents the FTC sought to serve were not case-initiating documents and was convinced that where conventional service methods involved a multiple-month delay, service by Facebook and email comported with Due Process requirements. The Court also observed that the defendants’ own “zealous embrace” of email and Facebook communications (for example, the defendants had used the email addresses at issue to blind copy the Court on emails they sent to counsel for the FTC) further supported this method of service.
A new piece of proposed legislation in Texas would carry Judge Engelmayer’s holding even further. Texas State Rep. Jeff Leach (R-Plano) recently introduced House Bill Number 1989, which proposes that a Texas court may authorize substituted service on a defendant using a social media website “if the court finds that: (1) the defendant maintains a social media page on that website; (2) the profile on the social media page is the profile of the defendant; (3) the defendant regularly accesses the social media page account; and (4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.” The bill is currently in committee, and while some Texas lawyers have expressed concern about whether the bill would adequately ensure that the recipient of service actually receives it, others acknowledge that service using non-conventional methods such as email or social media is becoming increasingly important as the way that businesses and people interact and exchange information continues to evolve.
Neither the New York federal court decision nor the proposed Texas legislation endorse using email or social media as the preferred method of service on a party, and both require the serving party to make a significant showing that the recipient is likely to actually receive the service by social media. However, the growing trend of utilizing these types of accounts to effect service indicate efforts by the legal profession to adapt to new technological trends. In an age where seemingly everyone has a social media account, it just may be the case that Facebook service notifications will be coming to your news feed someday soon.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.