Courts look cautiously at service of court process by social media

With the overwhelming popularity of social networking sites such as Facebook, MySpace, LinkedIn and Twitter as methods of communication and connection – both socially and within the business community – it is not surprising that social media is now being considered by the courts in the context of service of court process.

While courts so far have been cautious – as demonstrated by a recent NSW Court of Appeal decision we look at below – it is clear that social media presence and activity could, in some circumstances, be used to support service of important court documents via social media.

Context

When commencing a court case, usually the court rules require that the originating court process be served personally on the other parties.

Where this cannot be done, a party can seek an order from the court that the originating court process be served in another way (known as an application for substituted service).

The court will only grant an order for substituted service where the judge is satisfied that:

1. it is practically impossible to personally serve the person; and
2. the method of substituted service proposed is one that is reasonably likely to bring the person’s attention to the document.

There have been a number of cases recently where courts have accepted, on a substituted service application, that service can take place via a social networking site.

Recently, NSW Court of Appeal gave further guidance on the issue in the case of Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268. In that case, the NSW Court of Appeal was asked to consider whether service on international rapper Flo Rida, via his Facebook page, was effective service of an originating court process.

The Flo Rida Case

In 2011, Flo Rida was contracted to appear at Newcastle’s music festival ‘Fat as Butter’. He failed to appear at the festival, despite having already been paid $55,000 in advance to perform.

The promoter of the festival, Mothership Music, commenced court proceedings against Flo Rida for breach of contract, claiming the performer fee of $55,000, as well as other damages.

Attempts at personal service of Flo Rida were unsuccessful due to the level of security around the star.

In April 2012, the NSW District Court made an order for substituted service, which permitted Mothership to serve Flo Rida with the originating court process via his Facebook page.

Flo Rida did not respond to the court documents served via Facebook. Accordingly, judgment was given against Flo Rida to pay damages in excess of $400,000 for loss of revenue suffered by Mothership at the 2011 festival, loss suffered for poor ticket sales, and loss of sponsorship revenue for the 2012 event.

Flo Rida subsequently appealed the decision to the NSW Court of Appeal, claiming service on him via Facebook was ineffective.

On 20 August 2013, the NSW Court of Appeal upheld Flo Rida’s appeal.

There were a number of reasons why Flo Rida was successful but interestingly, the NSW Court of Appeal found that the order for substituted service via Facebook should not have been made because there was insufficient evidence to establish that:

• the Facebook page was in fact that of Flo Rida; and
• a posting on the Facebook page was likely to come to Flo Rida’s attention in a timely fashion.

The Court indicated that mere assertions as to these matters were not sufficient.

Comment

While the evidence put forward in the Flo Rida case was not sufficient to support an order for substituted service, gaining evidence of the type needed might not be difficult.

One would not expect to be served with a serious court process via hectic Facebook traffic, and to have that lead to a court judgment for a significant sum of money.

Therefore, from a business point of view, it gives food for thought as to the procedures in place for maintaining and monitoring social media sites by appropriate personnel.

If you would like to discuss this article please contact Angela Bound or Rocco Russo from our litigation and dispute resolution team on +61 7 3231 2444.