Poked, Tagged and Served

In addition to being poked and tagged on Facebook, foreign defendants can now be served with legal papers via the social media service.  A federal court in New York recently held that  the Federal Trade Commission may use Facebook to serve legal papers on defendants living in India. The case involves an alleged online scheme to trick America consumers into spending money to fix non-existent problems with their computers.  The FTC sued nine defendants, five of whom live in India.

Given problems it experienced with getting confirmation of service via more traditional means, the FTC asked the court for permission to serve papers on the defendants via e-mail and Facebook.  The Facebook service would consist of sending a message, with electronic versions of the legal papers attached.  Under the applicable federal rules, a court is allowed to “fashion a means of service” so long as the method is not prohibited by an international agreement and so long as it “comports with constitutional notions of due process.” 

The governing agreement between India and the U.S. is the Hague Convention.  It does not prohibit service by Facebook.  I have to guess this is because at the time the Hague Convention was adopted, Facebook didn’t exist.  But rules are rules.  The FTC prevailed on point one. 

On the “due process” point, the court discussed whether it was “fair” to use Facebook.  As the court noted, Facebook accounts may not actually be controlled by the person to whom it purportedly belongs.  But two things weighed in favor of allowing Facebook service here.  First, the FTC was not asking for Facebook to be the sole means of service.  As the court noted, had that been the request, it may have ruled differently.  Instead, the FTC asked to use Facebook as a backup to e-mail service.  And there was evidence that the defendants actually used the e-mail accounts in question.  Second, the court acknowledged that the FTC presented evidence that the Facebook accounts were legitimately used by the defendants.  These factors led to the court’s decision.

It appears this holding is a first.  And there is no guarantee that it will hold up on appeal.  But it is reminder that communication, even in the stodgy world of federal courts, continually evolves.  And the rules eventually try to catch up.