Serving legal documents and court proceedings via social media.
April 28, 2023
Legal document serving – When can court proceedings (legal documents) be served via social media?
What are some of the issues and problems with serving recipients or defendants by this method?
Over the past few years we have seen social media platforms being used more regularly as an option for serving court proceedings and legal documents. We can assist clients with this method of service:
- We have a business Facebook and LinkedIn account that we use to serve court proceedings and legal documents, a better option than a clients personal account.
- We have served all types of documents, including family proceedings, civil proceedings, and dissolution of marriage (divorce) applications by social media.
In New Zealand social media platforms are usually only used to serve court proceedings or legal documents when personal service is no longer an option. This often occurs when the recipient or defendant is being evasive and avoiding service.
Or, it could be because no one knows the whereabouts of the recipient or defendant, simply because they have not been in contact with the recipient for many years. If they do have a social media presence, then this may mean that a proceeding can continue.
Is social media a better option than email?
Email is a great method for sending documents to a recipient, if you have an accurate email address, and you get a response confirming receipt. But there are times when this is not a suitable option for service.
A large majority of people have social media accounts, and this number continues to grow each year. You can often see where a person is (i.e., are they on holiday), where they work, and how active they are on their pages. It means that even if they do not reply to you once you have served them, the fact that they are actively engaging in conversation with others, means that will have likely received your message (post) and court proceedings or legal document you have sent them. And depending on the application used, sometimes you can see if they have viewed or opened the post. Unlike email, you are not reliant on the recipient to reply, to confirm receipt.
Save on the need to source an international process server.
As the world continues to get smaller with the ability to connect quickly and easily digitally, it is possible in the future that we will be able to serve overseas respondents via social media in the first instance, without the need to attempt personal service first.
In countries where English is the first language the process for serving documents is usually much the same as here in New Zealand. We have agents in many overseas countries that assist us serving court proceedings and legal documents.
But in countries where English is not the first language, we have found that the process can be quite different, lengthy, and reasonably unreliable. Serving through a social media application could potentially simplify the process, mitigate the need to engage with an international agent, charging exorbitant international service fees, and ensure the process was managed in accordance with New Zealand Court requirements.
When can court proceedings and legal documents be served via social media?
Currently in New Zealand, from our experience, serving by social media will only be considered if all other avenues to serve the person personally have been exhausted. An application can be submitted to the court asking that service by another means, other than personal service, be allowed. This is known as making an application for substituted service.
There are several types of substituted service that can be applied for. They can include serving a family member of the respondent at a particular address, affixing the document to the door at the respondent’s home, by email, or by handing the documents to a staff member at their place of work. In most cases the applicant needs to demonstrate that sufficient attempts to serve the person personally have been made. Part of our process is to record all service attempts in case this is required as part of such an application.
In 2009 the High Court of New Zealand ruled that substituted service could be made on a defendant via Facebook as newspaper advertising (previously a common service alternative) could not be effectively used. This set the precedent, and since then New Zealand courts have continued to make orders allowing for service via Facebook.
In New Zealand, in our experience, when applying for an order for substituted service by social media it needs to be clearly demonstrated:
- All reasonable attempts at personal service have been made.
- The intended recipient has an active social media profile.
Other conditions that may need to be met will vary depending on the individual proceeding and the court judge making the decision.
What are the issues or problems serving court proceedings and legal documents by social media?
It may seem that serving by social media is the perfect solution for serving a person who has been avoiding service, or just cannot be located. But like anything there are always issues to consider.
You will need to prove beyond reasonable doubt the social media profile is owned by the recipient or defendant.
It is important to confirm that a person’s profile is legitimate before serving them with court proceedings or legal documents. On social media scammers and online fraudsters often mirror identities. That is where someone takes photos and information from an individuals genuine social media account and creates a new profile using their identity and content.
Have you served the correct recipient or defendant?
Ensuring you have the right account is critical. We prefer the applicant (or a person who knows the recipient) to send us a link to the correct social media account. Especially if the person has a common name. If the applicant is not familiar with the account, then we will often send a profile photo for them to identify the recipient or defendant.
Did the recipient or defendant receive the legal documents or court proceedings?
This is a big question mark and one that is subject too much legal scrutiny. This is why personal service is still the preferred method of service by the courts. Unless you receive a response confirming receipt no other type of service can ever one hundred percent confirm that the intended recipient received the intended documents.