The NSW Court of Appeal seems happy for courts to make orders for substituted service of documents via Facebook just as long as first principles are adhered to.
Macfarlan JA (with Ward and Gleeson JJA agreeing) recently gave judgment in the matter of Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 in which the Court was asked to overturn a District Court judgment founded on a statement of claim served by email and Facebook.
Flo Rida is an Amercian rap artist who allegedly breached a contract he had with event organiser, Mothership by failing to appear at a music festival in 2011. Mothership obtained judgment against Flo Rida when he also failed to appear at the hearing of the claim.
On appeal, Flo Rida asked the Court to set aside the judgment, arguing that the statement of claim was not validly served.
It is well established that service can be validly effected by email but due to a technical matter, the Appeal Court deemed this ineffective in the instant case. However, of greater interest to me were the Court’s comments regarding service via Facebook.
The good news is that the Court did not rule it out and in fact appeared to be saying that as long as it’s done properly, it’s ok. In this regard, Macfarlan JA took the matter back to first principles in finding that in his view the District Court had erred.
The nub of any application for substituted service application he said, is to show that the nominated means of alternate service must be likely to result in the matter coming to the intended recipient’s attention in a timely fashion (at [38]).
There was insufficient evidence of this in Flo Rida’s case because the Court was not satisfied that the Facebook page to which the notification of the proceedings had been directed was in fact that of the man himself. This would seem like a fair assumption given the anonymity the internet creates. Indeed it would also be safe to assume that not all celebrities manage their own Facebook and Twitter accounts. They have media people for this.
But if a claimant could confirm that a posting would be received by the press agent or like representative of the person in whose name the Facebook page appears, in my view this could establish a sufficient connection with the intended target. A little bit of internet hunting and a couple of phone calls would not doubt avail one of this kind of information.
In the case of an ordinary citizen a couple of simple measures could be taken to satisfy the kind of query raised by Macfarlan JA. Although I am not a Facebook user I know enough to be able to say that regular comments in a persons newsfeed may give an indication of a person’s identity and recent engagement with the page, especially when accompanied by the odd “selfie” (see Urban Dictionary definition). More regular and skilled Facebook users will no doubt be able to think of others.
All of this should form part of the evidence in support of an application for service via Facebook. Ultimately though, the likelihood that service has taken place is a fact like any other and therefore only requires proof on the balance of probabilities. As such, so long as an inference can be drawn with sufficient certainty there should be no problem serving a party by Facebook. Or an even more radical idea might well abound some time in the future based on the premise that if a Facebook page is held in a name (rather than what is obviously an alias) there is a rebuttable presumption that the page is the party’s own.
For now Flo Rida remains about $380K to the good (being the amount of the judgment set aside). For his local fans however, unfortunately it seems unlikely that he will be seen on these shores for some time to come; well at least until the 6 year limitation period has expired.
the blue bag 