A number of newspapers this week have picked up on a High Court decision to grant a secondary service order allowing service using Facebook and email. Secondary or substituted service is nothing new but the means used in this instance does appear to be novel in New Zealand.
Where reasonable efforts have been made to serve a document on a person by a method prescribed by the High Court Rules (which for service of a Statement of Claim will usually be personal service), the Court may permit a plaintiff to take such steps as it considers are likely to bring the document to the notice of the person being served and on the completion of those steps treat the document as having been served. Usual methods of substituted service include service by post or by advertisement in a local paper.
The order to allow substituted service by email is unsurprising as email is now widely recognised as a reliable and secure means of communication (the recently revamped High Court Rules now expressly include transmission by email to a party’s solicitor as a permitted method of service). However, service by Facebook will come with some interesting quirks. Firstly, there is the number of different ways you can use Facebook to communicate. You have to wonder whether the High Court order specified that the notice had to be by way of personal message on Facebook or whether it merely stated Facebook as the means. The latter would permit the plaintiff to leave the notification on the defendant’s wall where everyone who is friends with him will see it and automatically have it turn up on the news feed on their own Facebook page.
You also have to question how effective service by Facebook will be. Generally you need to have someone confirmed as your friend on Facebook to send them a message. Even assuming that you are issuing proceedings against someone that is your “friend” they can remove you as their “friend” at any time. If they are about to be sued by you they are probably not too concerned about hurting your feelings by removing you as their “friend”. Depending on the defendant’s privacy settings you may be able to search for them and send a message if you are not their “friend” but even most new Facebook users will know how to change their settings so that they are only visible to “friends”. For someone actively trying to avoid service who doesn’t want to be found it is a fairly simple step to take.
We watch with interest to see whether service by Facebook takes off but suspect it will remain a novelty.