Serving legal process via Facebook and Social Media

Service of legal process via Facebook and Social Media

The use of Facebook and other social media platforms as a mechanism for service of legal process is on the rise globally.   This is not surprising considering the exponential growth of the internet, and more recently, widespread use of various social media platforms across a variety of devices.

Basically, an individual normally gets legal process served in person, via post or some other accepted means.  In practice, this can be tricky and costly when a defendant is purposefully evading the judicial system or his or her whereabouts are unknown.  Enter social media and technology.

Although our judicial system has been sluggish to adapt to the use of technology in comparison with the likes of New Zealand, Australia, America, Canada and England, service of legal process via technology is an issue that both South Africa and foreign jurisdictions have only come to terms with recently. 

So, can one use Facebook, Twitter, Google+, LinkedIn etc. to serve legal documents in South Africa? In a word, yes.  There are a variety of factors that one would need to consider in each individual case, but as a general principal, it can be accepted that legal process may be served via social media.

Looking forward, one would think that we are moving to a place where service of legal process via electronic means, whether it be e-mail, social media or some other form of electronic communication will be commonplace.

In fact, the use of social media for service of legal process is not all that novel.  Facebook was deemed a competent method for service of legal process by the Australian courts in 2008.  The United Kingdom allowed Twitter to be used in a 2009.  Canada and New Zealand have followed suit.

Conversely, the relatively technology friendly country of America is reluctant to accept social media for service of legal process due to fears around authenticity or fake identity and frequency of use amongst other reasons. 

With this in mind, the Kwa-Zulu Natal High Court’s decision (per Steyn J) to allow service via social media in the matter of CMC Woodworking Machinery v Pieter Odendaal Kitchens is groundbreaking to say the least.  It is, as far as I am aware, the first such decision in Africa.

 The decision is by no means an open door policy to allow any person to be “served” via Facebook in South Africa.  However, it is a precedent that allows social media to be considered as an option going forward.  This ruling comes off the back of the amendments regulating the conduct of proceedings in the High Court where Rule 4A, read with the Electronic Communications and Transactions Act, allows communication via “data messages”.

How did the court decide that service via social media is permitted?  It reasoned that Facebook has developed “to serve more than one purpose” and that it is easily accessible to most persons across a variety of devices.  This can be accepted as trite by now and the following further steps may need to be taken to promote legal certainty:

1.      Proving that all reasonable attempts have been made to contact the defendant;

2.      Proving that conventional service of process (e.g.: the use of a sheriff) has failed on at least two occasions;

3.      Proving that the user is currently on the relevant social media platform;

4.      Proving that the user’s personal information on the social media platform “matches” or is consistent with the personal information held by the plaintiff, for example; names, previous address details and location;

5.      Publishing a further notice in the relevant daily newspaper circulating in the relevant area;

6.      Requiring the social media platform to depose to an affidavit attesting that the message was sent.

The onus of proof rests with the Plaintiff, and if steps 1 through 5 are completed, one could argue that the onus will, in most instances, be satisfied.  Step 6 could be used in situations where the court is not satisfied that the onus has been discharged. However, given the dynamic nature of social media and technology, the list above is not exhaustive and further steps may be required.  It will very much depend on the circumstances, and in most matters pertaining to law, a case-by-case analysis will be required.

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