There is no doubt that social media is permeating every facet of our society. Now it is increasingly making its mark on our legal system too. There is a growing trend of service of process being accomplished through social media and other electronic communications.
What does this mean for the legal profession and the future of process service? While personal service is still the overwhelming norm, there are still circumstances where service by social media is the best option. Legal professionals who understand this trend can better advise their clients and achieve their legal objectives.
Basic requirements for service of process
The fundamental requirements for service of process arise from the U.S. Constitution. Specifically, the Due Process clauses in the Fifth and Fourteenth Amendments provide that no one shall be “deprived of life, liberty or property without due process of law.” This effectively means that a court does not have personal jurisdiction over a defendant unless the defendant has received proper notice of the legal proceedings.
The due process standard is met by requiring plaintiffs to serve the summons and complaint on the defendant. The usual methods of service are personal service, where these documents are handed directly to the defendant, or substituted service, where they are handed to a suitable person at the defendant’s home or place of work.
Service by non-traditional means, such as social media, is only possible when traditional means of process service have been exhausted. So if contact information has been verified and personal or substituted service is still not possible, the typical next steps are service by certified mail and service by publication. Service by social media or other electronic means is still a last-ditch option.
Cases where courts have permitted service of process via social media or electronic communications
When you are considering process service by social media, it is important to understand the circumstances where such service is legally allowable. Over the last decade, there have been many instances where service by social media or other electronic communications has been allowed by courts, including those detailed below.
Service by Facebook
In Baidoo v Blood-Dzraku, 5 N.Y. S3d 711 (N.Y Sup. Ct. 2015), a New York court allowed a woman to serve a divorce summons on her husband via Facebook. Here there were numerous barriers to traditional service. The wife had not lived with or seen the husband for 5 years after marriage and could not find a physical address for him. However, they did communicate regularly through the Facebook messaging system.
In allowing the wife to serve her husband via Facebook, the judge also allowed her to forego the traditional next step of service by publication. He noted service by publication in New York was typically done through the New York Law Journal and the Irish Echo. “The chances of 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.”
In K.A. v. J.L., 450 N.J. Super. 247 (N.J. Super. Ch. Div. 2016), the adoptive parents sought an injunction barring a man from contacting their son and claiming to be his biological father. The man was a stranger to the parents, but he had contacted their son through Facebook and Instagram. Since they could not find his address, the New Jersey court found good reason to allow Facebook service, including (1) the original harm was done via Facebook, (2) the man’s Facebook account appeared to be active, and (3) the Facebook messaging system allowed the sender to verify the recipient had opened the message.
Service by Email
The U.S. District Court for the Southern District of Florida authorized service of process by email in the 2018 trademark infringement case Transamerica Corp. v. TransAmerica Multiservices Inc. The defendants were individuals and a corporation running an anonymous website. The court reasoned that defendants had actively concealed their whereabouts but had responded to email communications, so email service was proper.
Service by Twitter
A California judge allowed process service by Twitter in a 2018 employment case where the plaintiff could not physically locate the defendants. Importantly, the Twitter service was done as a supplement to more traditional service, since the court also authorized service by publication. Service by Twitter alone may not have been deemed sufficient.
How to accomplish service through social media
Based on case law and examples like those listed above, certain principles emerge regarding the best way to accomplish service through social media.
Exhaust all other service options
You must exhaust all other possible means of process service, including making best efforts at physical location of the defendant. Depending on the circumstances, the court may find that traditional alternatives to personal service, like publication, are not feasible.
Confirm ownership and use of the social media account
Be prepared to present evidence that the defendant has a social media profile which they use on a regular basis. This could include status updates and posts, as well as plaintiff’s communications with the defendant through that profile.
Proving receipt of service
Courts are more inclined to allow service by social media or electronic communications if the plaintiff can prove the defendant received the message. This is possible with platforms such as Facebook Messenger and WhatsApp.
Service of process through social media or email is still the exception to the rule, as courts will still prefer personal service whenever possible. However, these alternative methods are another bow in the quiver for legal professionals exploring their service options.