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Australian Court Lets Lawyer Serve Papers Via Facebook

Posted by kdawson on from the super-poked dept.

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?"

43 of 204 comments (clear)

  1. But.... by arthurpaliden · · Score: 4, Interesting

    How does he know that the person is infact the one he wants? It could be someone registering with a false name. No, I guess it could not be cause that is now illegal.

    --
    Undetectable Steganography? Yep, there's an app fo
    1. Re:But.... by Nasajin · · Score: 3, Insightful

      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, because there were too many other people with the same name.

    2. Re:But.... by Whiney+Mac+Fanboy · · Score: 5, Informative

      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):

      they listed their birth dates, full names, and they had listed each other as friends,

      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.
    3. Re:But.... by spazdor · · Score: 5, Insightful

      You'd probably be pretty confident that you'd found the right people hey?

      Well, I'd be confident that I'd found someone claiming to be the right people.

      --
      DRM: Terminator crops for your mind!
    4. Re:But.... by hairyfeet · · Score: 5, Insightful

      I wouldn't be so sure. Here in little nowhere AR I had to argue with a bank and several other businesses that I wasn't some other guy. Finally I tracked him down and we went together to straighten it out since he TOO had been getting stuff that was for ME. When we sat down together it turned out we had the same first and last names, our fathers and mothers had the same first and last names and the same middle initials. And to top it off his sister had the same name as mine(which my mom made up) so he called his mom and it turned out she was having his sister in the same hospital at the same time my mom was having mine, and when she overheard my mom talking with the nurses about the made up name she thought it was cute and named her girl the same!

      So while I am sure that this lawyer probably has the right people, never underestimate the power of coincidence. After all if two people whose families have never met face to face could have so much in common in a little place like AR, imagine how many similar couples or families there could be on something as large as FB?

      --
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    5. Re:But.... by z-j-y · · Score: 5, Funny

      some time traveler screwed it up.

    6. Re:But.... by __aasqbs9791 · · Score: 3, Interesting

      My dad ran into someone with the same first name, last name, and one of my middle names and when he talked to the guy a little more he found out we were born on the same day in the same hospital! This was a few years ago in a small town we lived in at the time (which is over 800 miles from the said hospital, so it is even more interesting.) The guy was just passing through town with his family, so I never met him (time travel paradox adverted!)

    7. Re:But.... by QuantumRiff · · Score: 5, Interesting

      There was trouble tracing a problem with a person in our DB at a college I used to work in. They were listed in the system twice. Same Name, birthday, address, marital status, and age. In fact, the only difference was the social security number and gender. One had taken a few classes, one was full time. We spent forever tracking down the problem, assuming someone created a typo when they created the student record, then thought to call the phone number listed as their phone number (yep, same number) and they both came in. Husband and Wife were both named "Leslie" (Not common for a man, but not unheard of) both were born on the same day, in different states, and had been married for 25 years with children also attending the college. That day taught me a reminder I still keep around about jumping to conclusions. Sure, your 99.999% sure, but that leaves 1 out of 100,000, and someone has to be that one...

      --

      What are we going to do tonight Brain?
    8. Re:But.... by mr_matticus · · Score: 5, Insightful

      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.

      Why?

      Personal service is preferred, and process servers go to extreme and often comical lengths to put the paper in your hand, but some people refuse to accept service. Should you have to continue a manhunt for a year, at a cost of tens of thousands of dollars, in order to exercise your legal rights? How would you feel if someone potentially owed you thousands or millions of dollars and you couldn't get it because they wouldn't open the door?

      Like all forms of service other than personal service, it's a last resort after a documented showing of diligence. At some point, you're intentionally avoiding being served, because letters and messages have been left for you, and if that's the case, the notice function of service has been fulfilled. Like everything else in law, it's a balancing of competing needs. You also always have the opportunity to fight a default judgment if you can legitimately demonstrate that the dozens of attempted services were missed because you were actually, truly not available.

      As you can imagine, the chances of you disappearing from society and leaving no trace of how to contact you with employers, neighbors, family, and friends is fairly small...unless you're running from something.

    9. Re:But.... by riprjak · · Score: 4, Informative

      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.

    10. Re:But.... by Fluffeh · · Score: 2, Interesting

      More important than that, in Australia court papers need to be served in a manner that ensures the person being served is both given the information and also is aware that they are given it.

      Sending papers by the mail for example is NOT considered good enough.

      I don't see how this guy could guarantee that the users got proper notification that they did in fact get served the court papers. Short of getting the person to write a reply email confirming that they have indeed accepted the papers (which I would see as being as good as a signature on a sheriff's slip) I can't see how this can possibly stand up.

      My understanding is that any ruling based on "being served" can be easily disputed if the party serving the papers cannot prove that the right person got the papers, and that they have proof that they got the papers. I cannot see that via facebook.

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    11. Re:But.... by digitalunity · · Score: 3, Informative

      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.
    12. Re:But.... by T+Murphy · · Score: 4, Funny

      every other avenue had been attempted

      Lawyer: They won't be served by any other means.
      Judge: Did you try carrier pigeons? Ducks using semaphore? Pelting their door with artichokes to form Morse code? Cucumbers too?
      Lawyer: Yes, we tried all that- including the singing lemurs. Now, can we please just serve them on facebook?
      Judge: Blast! I was sure the lemurs would work. Well, we haven't even started with the ones involving mimes... don't start with those crazy ideas of yours just yet!

      --
      My webcomic
    13. Re:But.... by SBFCOblivion · · Score: 2, Insightful

      our fathers and mothers had the same first and last names and the same middle initials.

      I believe they call that 'brothers'.

    14. Re:But.... by ArsenneLupin · · Score: 2, Interesting

      As you can imagine, the chances of you disappearing from society and leaving no trace of how to contact you with employers, neighbors, family, and friends is fairly small...unless you're running from something.

      I know a guy who thought it smart to just "disappear" for a year, touring the world.

      When he came back, his large real estate holdings were foreclosed, because there was problems with some tenants who failed to pay their utility bills and just left (some even taking the keys with them...). The company that my friend had hired to look after the building failed to do anything about the situation, so the city moved to confiscate the building in order to pay the bills.

    15. Re:But.... by Dan541 · · Score: 3, Funny

      Am I the only one annoyed by gender-ambiguous names?

      The worse is with gender-ambiguous voices over the phone. I'm sure I have upset many people over the years.

      --
      An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
    16. Re:But.... by szquirrel · · Score: 4, Funny

      When we sat down together it turned out we had the same first and last names, our fathers and mothers had the same first and last names and the same middle initials...

      After all if two people whose families have never met face to face could have so much in common in a little place like AR...

      ...can't think... too many jokes... all trying to get out at once...

      --
      Never approach a vast undertaking with a half-vast plan.
    17. Re:But.... by kabocox · · Score: 2, Interesting

      Personal service is preferred, and process servers go to extreme and often comical lengths to put the paper in your hand, but some people refuse to accept service. Should you have to continue a manhunt for a year, at a cost of tens of thousands of dollars, in order to exercise your legal rights? How would you feel if someone potentially owed you thousands or millions of dollars and you couldn't get it because they wouldn't open the door?

      I'd be more upset at the system that allowed that rather than the individual that evaded being called up by the system. The thing is that process server is supposed to make sure that the right people get the papers. Think of 3-5 people with the same name living on the same street with only the address numbers being slightly different. I doubt that happens too much in the physical world, but it would be much easier to happen online.

      I had a college friend named Mark Miller. When I tried looking him up a few months ago, there were 10 Mark Millers in the same city as he was last known. I didn't need to find him badly enough to actually contact each of the 10 to find out if any of them where him, but I'd imagine that a process server would have to do that and then physically contact the person. Well, calling people on the phone/cell or e-mailing them is easy. It's difficult to actually verify if the person that you've contacted is the person that you actually should be talking to though. Esp if you aren't already familiar with the person. (I might remember my friend from college and could tell him from the other 9 Mark Millers, how the heck would a process server tell them apart? The only thing that he has going for him is the address to limit it down a bit.

      It sounds like this lawyer didn't even have a current address. I'm sorry, but this doesn't sound like it should be valid at all. If anything, it would just let lawyers serve things without the proper people finding out until after the lawyer has had a court date and used his time to say that the other party defaulted so his side should win.

  2. Somewhat reasonable by AKAImBatman · · Score: 3, Informative

    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
    1. Re:Somewhat reasonable by danpat · · Score: 2, Funny

      I also am not a lawyer, but my housemate is, and he agrees with you.

    2. Re:Somewhat reasonable by DuranDuran · · Score: 3, Funny

      IANALBMHI?

      --
      "You can justify anything by putting it in quotes, adding a famous name and making it a sig" - Albert Einstein
    3. Re:Somewhat reasonable by Zwicky · · Score: 2, Funny

      If I ever get sued for anything I am so working that line into my defense.

      --
      "Three eyes are better than one" -- Lieutenant Columbo
  3. One more reason by VonSkippy · · Score: 2, Insightful

    Reason #9,382,329 NOT to waste time on those stupid "social" networking sites.

  4. Wait, via Facebook? by strredwolf · · Score: 4, Interesting

    Couldn't the lawyer request Facebook give up the goods on the couple?

    --

    --
    # Canmephians for a better Linux Kernel
    $Stalag99{"URL"}="http://stalag99.net";
    1. Re:Wait, via Facebook? by WallyDrinkBeer · · Score: 2, Informative

      I'm sure Facebook would be happy to supply IP/date-time details if they were Chinese bloggers. Alas, they are just Australian deadbeats.

  5. Facebook no different to email. by Whiney+Mac+Fanboy · · Score: 4, Informative

    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.
    1. Re:Facebook no different to email. by mysidia · · Score: 4, Insightful

      Actually, there is a difference. In general, you are pretty certain who an e-mail address goes to.

      If the ISP is contacted to obtain a person's e-mail address, they can definitely provide the info, they can also match the user up with customer billing records. This information is fairly unlikely to be fake.

      With e-mail, your address may also be exchanged in advance, i.e. through some other means of communication, so the person serving can show solid evidence that the e-mail address belongs to the person.

      I.e. if the legal matter concerns copyright material posted on blah.example.com, and the WHOIS info for that domain lists the e-mail address, then there is PROOF that the e-mail address is provided by a person who controls the domain.

      However, with facebook, the target party is found by a simple search for their name and (possibly geography).

      Since multiple people have the same name, even in the same area, it is unreasonable to expect you have verifiably served the right person.

      You may have accidentally sent the information to the wrong profile.

      Also, the purpose of facebook (for many users) is simply to display profile information.

      Many users don't expect to receive messages of any sort, so they don't check them.

      This is in stark contrast to an e-mail service whose sole purpose is to receive messages, and is effective, so long as the account is not abandoned.

    2. Re:Facebook no different to email. by Whiney+Mac+Fanboy · · Score: 4, Informative

      If the ISP is contacted to obtain a person's e-mail address, they can definitely provide the info, they can also match the user up with customer billing records. This information is fairly unlikely to be fake.

      An ISP can provide an email address, but hardly anyone uses an ISP's email - they use one of the big webmail providers. So there's no guarantee the recipient will check their ISP provided mailbox.

      However, with facebook, the target party is found by a simple search for their name and (possibly geography).

      Since multiple people have the same name, even in the same area, it is unreasonable to expect you have verifiably served the right person.

      Since this is slashdot, it is unreasonable of me to expect you to have read the article - so here's the relevant quote:

      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

      --
      There are shills on slashdot. Apparently, I'm one of them.
    3. Re:Facebook no different to email. by syousef · · Score: 3, Funny

      One crappy, lossy, non-guaranteed electronic communications medium vs another.

      Email version:
      Deposition Subpoena to Testify
      GREETINGS: YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON THE FOLLOWING WITNESS:
      John Doe of 53 Sanity Street SanesVillie

      Facebook version
      lolz. Hey John. U been summ'd to Court. cu there. haha. sucker!

      --
      These posts express my own personal views, not those of my employer
  6. This could be used for by gregbot9000 · · Score: 3, Insightful

    a new type of spam.

    The question I have is how dose he know they read it? As I understand it, the key is making sure the person knows they have been served.

    1. Re:This could be used for by jamesh · · Score: 4, Interesting

      That's a very valid point.

      "Yes your Honor, I do recall receiving a message with that subject/content but I deleted it assuming it was spam or a virus. After all, what kind of an idiot would serve a legal document via Facebook?".

      Aside from the fact that inferring that a judge is an idiot is seldom a good idea, it would appear to be a valid assumption - it's what I would do if I saw an email with a subject that looked like it contained a legal document (or any attachment from someone I didn't know), and ditto for a facebook message if I had a facebook account.

  7. Re:WTF -- this is OLD news by hardcorejon · · Score: 4, Funny

    ah, if only there were a "troll but true" comment rating.

  8. Proven by the RIAA by BearGrylls · · Score: 2, Interesting

    If nothing else, the RIAA has proven that the end of online anonymity is coming. Why is anyone surprised that this is happening? It's sketchy, and from what I understand barely legal, but it's gaining momentum.

  9. At what point isn't an online presence 'real'? by Zadaz · · Score: 4, Interesting

    What trog wrote the summary?

    Most of my clients know me only via phone number, email address, or chat alias. I still produce work and they still pay me.

    My bank and my credit cards knows me by a made up user name. They still let me move my money around.

    Amazon only knows me by a made up name and they trust me enough to take my money and ship goods to some address I just gave them.

    The only thing controversial about serving documents via Facebook is that I don't know how you can verify delivery, which is kind of the whole point of serving papers.

    1. Re: At what point isn't an online presence 'real'? by Jessta · · Score: 3, Insightful

      In Australia to get a bank account you have to provide 100 points of ID. So my bank knows who I am.
      Amazon is a company that provides a service, they don't care who you are as long as they get their money(eg. like a supermarket etc.).

      I imagine your clients would regret not having more information about your identity if they paid you and you failed to produce the work required.

      Online identity could be the same as physical identity if online services required you to actually provide some form of identification(eg. credit card number, copy of driver's license, etc.) although I've always been horrified at how little is required to prove one's identity and how much that identity gains you.

      If I received papers via Facebook I'd just ignore them, as there is not way anyone else could know whether I received them, or that the account was actually me.

      - Jesse McNelis

      --
      ...and that is all I have to say about that.
      http://jessta.id.au
  10. text of summons by Anonymous Coward · · Score: 5, Funny

    U R SERVED!! U lamers 2 appear B4 judge Dec 19 700 hrs re home loan U "forgot" 2 repay.

    G'day.

  11. Re:That wasn't me... by jamesh · · Score: 2, Informative

    It's not your system administrators who make that decision.

    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.

  12. What advantage does the legal notice server get? by userw014 · · Score: 3, Insightful

    So, what advantage does the server of the legal notice get from this? What is to prevent him from creating a false identity in order to advance the legal process towards confiscating the property? What is to prevent someone from filing a false claim against someone, using a falsely created set of identities to serve notice to?

  13. Australian Debt Recovery anything goes by tg123 · · Score: 5, Interesting

    I'm surprised they even have lawyers in that colony of misfits.

    Your not too far wrong sadly enough.

    This story is really about australian debt recovery. In australia short of actual physical violence you use any tactic you like to recover debt.

    You can even make threaten violence and scare the sh*t out of someone to get your money and the court will let you get away with it.

    this is a link to a few who got fined. NOTE: ONLY FINED

    http://www.fairtrading.qld.gov.au/OFT/OFTWeb.nsf/Web+Pages/3C3C486D9B068FDF4A256FDC007E3CB5?OpenDocument&L1=News

    1. Re:Australian Debt Recovery anything goes by digitalchinky · · Score: 5, Informative

      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.

    2. Re:Australian Debt Recovery anything goes by Anonymous Coward · · Score: 3, Interesting

      It's a pretty sleazy industry

      It is a very sleazy industry. I just had issue a month ago with a phone company when I cancelled my account. They never issued a final bill; instead referring the matter straight to their preferred debt collector. Funny that the debt collector had the correct address but the phone company swears black and blue that they never had my correct address.

      I ended up on the wrong end of the phone trying to get a bill out of the debt collector. Spent nearly 6 hours being transferred around and around on a few different phone calls. Their whole attitude was 'if you'd paid the bill you wouldn't be in this mess, so pay the bill" to which I continued to reply "If I'd been sent a bill it would have been paid". That went around in circles.

      To top it all off, the bill would have actually been due about now, so the debt collector was unnecessary.

      Eventually I had to go to the relevant industry associations to get anywhere. Said phone company still hasn't actually sent me a correct bill (no it's not T$ for once), won't communicate with me and won't compensate me for the almost whole business day of lost income because I was trying to deal with their incompetence.

  14. No worries. by sootman · · Score: 5, Funny

    They can just pay back the loan with WoW gold.

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  15. It's in the article by jesterzog · · Score: 2, Informative

    How does he know that the person is infact the one he wants? It could be someone registering with a false name.

    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.