Slashdot Mirror
Australian Court Lets Lawyer Serve Papers Via Facebook
a302b writes "A Canberra lawyer has been permitted to serve legal documents via Facebook for a couple who defaulted on a loan. He claims he needed to do this because he was unable to track them down to a physical address. At what point does our online presence become 'real?' And what opportunities are available for fraud, if social networking sites are considered legal representations of ourselves, even when they can be anonymously created under any name?"
If the couple was in hiding but was maintaining an active presence on Facebook, then I can see how this would be reasonable. The lawyer was required to deliver the papers to the last known address is addition to serving notice via Facebook. Interesting, the profile disappeared after the papers were served...
Of course, it will still be up to the judge to decide if the experiment was a success. If he decides that the papers were not properly served even after allowing it, he won't give a summary judgment. Alternatively, the judgment could be vacated if the couple later challenges the judgment and the next judge finds that papers were not properly served.
(IANAL, but I did stay at a Holiday Inn express once!)
Javascript + Nintendo DSi = DSiCade
Yawn - Facebook is no different to email & US courts have served via email in the past.
One crappy, lossy, non-guaranteed electronic communications medium vs another.
There are shills on slashdot. Apparently, I'm one of them.
Also, the fact that there are many people on facebook with the same name, let alone false ones. For many of my friends I was only able to track them down with email addresses,
Yes, but if you were looking for a couple on facebook & found (as the article states):
You'd probably be pretty confident that you'd found the right people hey?
For the record - I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
There are shills on slashdot. Apparently, I'm one of them.
Just about all such settings are enforceable via group policy these days, and as such can be 'enforced' by your system administrator. It's easy enough to get around though that I don't think it would stand up in a court of law.
I'm sure Facebook would be happy to supply IP/date-time details if they were Chinese bloggers. Alas, they are just Australian deadbeats.
For the record - I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
TFA Clearly states that the Court only allowed this because it was presented clear evidence that every other avenue had been attempted and exhausted to serve the couple. Our Courts have allowed in the past innovative approaches to serve papers where defendants have failed to respond to traditional means or attend court in their own defence.
Also note that courts in Australia have DENIED such requests in the past, as they were not convinced in those cases that other avenues had been exhausted.
This approach is not "legal" per se but rather only as instructed by the Court in this case; our Judges have discretion in cases where parties are evidently avoiding the serving of papers through "traditional" channels.
This is a story about a clever investigator providing a lawyer with another approach to serve papers after all available means had been tried and failed. And it worked, the day after this was publicised locally, lo and behold the folks in question re-appeared at the address they are about to be evicted from and basically confirmed that they had indeed been found.
err!
jak.
While I understand this is the usual mode of operation for debt collectors (from personal experience), they are actually very strictly bound to various legal codes, including codes of conduct. They violate them often at their own peril. They routinely end up in the courts for this activity, the problem is that for every agency that goes under for harassment, there are 30 more in the queue lining up to take over.
* a little bit unrelated to your post *
It's a pretty sleazy industry, if you're at the wrong end of one of their phone calls, simply tell them you will only communicate via the written word, and that you wont hesitate to go to the ACCC (And numerous other watchdogs) if they fail to abide by your directive to do so. Don't be afraid to do this either, you might be in debt, but you still have rights - and most of us do actually like to keep some shred of dignity about us, even in our worst moments.
Believe me, these bastards wont hesitate to tell everyone all about your financial situation, including your boss, your friends, family, their aim is to cause embarrassment and get a quick settlement - they get a cut of this, so it's in their interest to do it fast.
If you are in debt and really can't pay at their stupid rates, then you are actually better off going to court and discussing your options with a judge. They are far more understanding, compassionate, and willing to intervene so you can continue to live your life.
Back on topic, there have been other precedents to inform people of such things via the internet, it is rare, but it happens. I live in Asia now, it's even worse here, if they can't find you the law says they have to publish the details in a paper of general circulation - some of it is amusing to read, but mostly it's just sad.
From the article: "McCormack argued that he knew he found the right people online because they listed their birth dates, full names, and they had listed each other as friends, according to the AFP. This was apparently enough to convince the judge, who said that McCormack could serve the couple Facebook papers as long as he also left them at their last known address and also via e-mail.
Obviously it depends on context, but on a case-by-case basis it's usually possible to tell if you can be reasonably certain if it's the right person or not. Sometimes judges can be ignorant of certain domains but most judges tend not to be as stupid as many people on Slashdot claim they are, and they know a lot about the law and how it applies. You can't be absolutely certain that a Facebook profile is the person you want and you can't be sure that the profile's inbox is being monitored by the associated user, but you might also ask how you know for certain that you're handing documents to the correct person rather than a lookalike, or someone falsely claiming to be them. At some point you just have to draw the line of what's reasonable, or the system falls apart. Once you've passed a certain point of reasonable doubt and things have progressed, I think it's fair to leave it up to the other person to prove why that they couldn't have been aware of the papers.
Having a reasonable excuse for not being able to be contacted is one thing, but personally I think if people go to ridiculous lengths to avoid being served with legal papers, they shouldn't be given much sympathy. If you're covering your ears and singing to yourself specifically so you can avoid hearing someone giving you bad news, it's really your own fault if things move on and decisions are made without you being present. Someone else is owed lots of money here, and they deserve a fair hearing, too.
If you're in the United States, you should read up on the E-SIGN act, signed into law in 2000 by Clinton. See here for some info.
http://www.ftc.gov/os/2001/06/esign7.htm
The law was technology agnostic. My basic understanding is that if you have prior agreement in the US to do business with another person electronically, then something like this could work in the US too. There are specific legal requirements though for serving court summons and notices, so it might not. Who knows... IANAL.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.