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Australian Court Serves Documents via Facebook

     
12:13 am on Dec 13, 2008 (gmt 0)

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A recent article contributed by a leading Australian Tech Specialist Law Firm says :

The big question about Facebook is does it have any valuable commercial application? Well it seems that the courts have found one.

Today in what appears to be a first in Australia and perhaps the world, Master Harper of the ACT Supreme Court ordered that a default judgement could be served on defendants by notification on Facebook.

A default judgement is given by the court where the defendant does not appear in court to defend the case. Once the plaintiff has been awarded the default judgement by the court, the plaintiff must then locate the defendant and serve the judgement on them.

Usually this is done by way of personal service or the mailing of the judgement to the defendant's home. However, service can be difficult where the defendant is not easily located.

Courts do allow service by way of email .[edited].....but Facebook is a new one.

Master Harper ordered that the defendants in the case could be validly served by the plaintiff sending a message by computer to the Facebook pages of both defendants informing them of the entry of and the terms of the judgement.

Read the full article here [smh.com.au...]

So , is this one place less for users to hide ... eh ?

10:46 am on Dec 16, 2008 (gmt 0)

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Thought I'd give this a further push as it is in the context of using Facebook to a home repossession following a mortgage default, + the BBC is now also running with the story.

The couple's home is being repossessed after they reportedly missed payments on a loan of over A$100,000 ($67,000; £44,000).

It is believed to be the first time Facebook has been used in this way.

[news.bbc.co.uk...]

Imagine debt collectors on Facebook !

11:43 am on Dec 16, 2008 (gmt 0)

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Interesting story. But then I noticed:

In granting permission to use the social networking site, the judge stipulated that the papers be sent via a private email so that other people visiting the page could not read their contents.

So actually... the papers were served by email, not via Facebook.

11:44 am on Dec 16, 2008 (gmt 0)

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Listen up all, there are already debt collectors using Facebook, or any other website that may come up when searching on a persons name in Google. They may not actually send papers or anything using the service, but debt collectors really don't like snail mail anyway, they like phone numbers, and wherever they can get your phone number is fair game for them.

[edited by: jeffgroovy at 11:47 am (utc) on Dec. 16, 2008]

11:47 am on Dec 16, 2008 (gmt 0)

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- there's more info surfacing through a Financial Times in UK interview :

Mark McCormack, a solicitor with Canberra-based firm Meyer Vandenberg who is acting on behalf of the lending institution, said he was unsure whether his approach was a world first but he was not aware of Facebook being used in this way before.

An avid Facebook user himself, Mr McCormack said the Australian Capital Territory Supreme Court allowed him to serve the “default judgement” after court papers were also left at the couple’s last known address, where they could not be found. The couple were also contacted via email.

“These are debt collection proceedings,” Mr McCormack told the Financial Times, adding if the couple did not respond within seven days to have the default judgement set aside then his client would seek enforcement procedures to seize the property.

[ft.com...]

[edited by: Whitey at 11:51 am (utc) on Dec. 16, 2008]

1:08 pm on Dec 16, 2008 (gmt 0)

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In the absence of an email address and through some very limited triangulation of user data such as friends and date of birth (which as we all know can be faked on just about every level), the lawyer was able to convince the Australian Supreme Court that the identity of the facebook profile corrolated with that of the person to whom the notice was being served. Actually the role of Facebook was to provide the email address that was assigned to the account. Which they promptly did. All well and good when it works, but if the person had not replied to the email because it was a fake, would that have been interpreted as evasion by the law...and subject to being persued by Dog the Bounty Hunter?

Just one other point, with regards to Facebook's privacy policy and specifically "Facebook Platform Applications", does anyone understand exactly what personal information is shared with application providers when you agree to install an application on your facebook profile page?

1:34 pm on Dec 16, 2008 (gmt 0)

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This is why I keep my Facebook private. Only friends can see me. ;-)
6:46 pm on Dec 16, 2008 (gmt 0)

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Since when did Facebook become a legal point of presence?

Let me point out that anyone could sign up on Facebook as anyone, there is ZERO validation that you are who you claim you are, therefore you could just as easily claim you were never served because it's simply not you.

I don't see how it could possibly hold up in court.

Stupid judge.

8:38 pm on Dec 16, 2008 (gmt 0)

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You've got to be kidding me, I have an account I never use so to say if I'm served there means I'm served... I'll never know about it in time to defend myself properly which violates MY rights.

The courts would be wise to get off the net and stick with "physical addresses and in person communications" asap.

edit: an after thought - Is your internet connection being down the same as evading the law?

[edited by: JS_Harris at 8:42 pm (utc) on Dec. 16, 2008]

9:07 pm on Dec 16, 2008 (gmt 0)

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wow... I've used bogus email addys for every social type whatever type signups I've ever done.. whatever type... whatever...
2:56 am on Dec 17, 2008 (gmt 0)

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Yea. I would hope that would not fly in the states. I have a junk email address that I use only for signups. The only time I even log into this email is if I have to verify a signup or forgot a password and requested a reset.
5:25 am on Dec 17, 2008 (gmt 0)

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I used a junk email addy to sign up here.

My god what are the implications?

5:26 am on Dec 17, 2008 (gmt 0)

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A good challenge will beat that... watch and see...
5:55 am on Dec 17, 2008 (gmt 0)

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Some more info through Reuters :

"We did a public search based on the email address we had and the defendants Facebook page appeared."

He said that was enough to convince the court, which found Facebook was a sufficient way of communicating legal papers when it is the plaintiff's responsibility to personally deliver documents.

[uk.reuters.com...]

6:02 am on Dec 17, 2008 (gmt 0)

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But, without a read receipt, the lawyer can not prove the defendants received the email, so legal service would not have occurred.

[edited by: lawman at 10:16 am (utc) on Dec. 17, 2008]

6:39 am on Dec 17, 2008 (gmt 0)

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Since when did Facebook become a legal point of presence?

Actually I guess Facebook is being used as sort of a reference point.

This'll be interesting.

[edited by: lawman at 10:21 am (utc) on Dec. 17, 2008]
[edit reason] Fix Style Code [/edit]

7:59 am on Dec 17, 2008 (gmt 0)

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and more news ....

...... said that by the time he got the documents approved by the court late Tuesday for transmission, Facebook profiles for the couple had disappeared from public view.

The page was apparently either closed or secured for privacy, following publicity about the court order.

........ Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.

..... maybe the internet is faster than the lawyers who use it .

10:34 am on Dec 17, 2008 (gmt 0)

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Courts everywhere pushing through judgments are notoriously lax and suspicious, especially in Liverpool England where the BBC TV programme Watchdog routinely returns to correct points of law for them.

Facebook being American means that it is a genuinely useful tool to law enforcement there at least, where the company and it's application publishers will consider any request for personal information of a user, a compliment and an opening to sit at the National Table of Security.

[edited by: lawman at 3:30 pm (utc) on Dec. 17, 2008]

1:17 pm on Dec 17, 2008 (gmt 0)

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Courts everywhere pushing through judgments are notoriously lax and suspicious - use a court in the east of England as part of my work, teh judge doesnt even ask to see evidence of the breach. I know Civil cases require a lower standard of proof but.... It makes me uneasy at times.
3:36 pm on Dec 17, 2008 (gmt 0)

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Commenting on specifics of a case is fine, but please refrain from disparaging any country's legal system.
4:44 pm on Dec 17, 2008 (gmt 0)

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Service in the U.S. must be reasonably calculated under all the circumstances.

What does this mean? That email and facebook and what not can only be used as a last resort. A court will not allow an email when the plaintiff could have easily sent a snail mail or made a phone call.

But if email is the only way to serve, it might very well be reasonably calculated under all the circumstances.

Moncao, in the U.S. it may not matter if you know whether the defendant has actually read the email as long as it is reasonably calculated. Say for example, the defendant runs an internet website as his job. On the website is listed an email. It is reasonable to expect that since he runs this website and does business through email, then he will get this email.

What about facebook? Well, if after all the efforts they cannot find a way to contact the defendant, and then can find him on facebook with absolute certainty (information in the profile may verify it is the actual person), then that may very well be reasonably calculated. Would you have to prove they actually read it? No, not if they use facebook a lot, have recently made updates to their profile (especially after receiving service of process), etc. Facebook itself may be able to help and give the time of the last known activity of the defendant on facebook. Someone who rarely uses facebook, however, would presumably be less convincing to the courts.