12 January 2009

Social Networking: Process can be served by Facebook

As most of my clients and connections in Yorkshire and Humberside know, IP Yorkshire is on Facebook. We're also on LinkedIn and twitter if anybody is interested.   These are social networking sites where people go for as bit of fun. However, that may change with the decision of Master Harper of the Supreme Court of the Australian Capital Territory (Canberra) to permit a mortgagee's solicitors to serve process by "poking" in a possession action against two mortgagors whom it was unable to serve by any other way.

As it happened, the master's permission was given too late because the mortgagors withdrew their profile from Facebook before they could be served.   But the decision has resounded around the world with Facebook apparently rejoicing: 
"We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives,"
(see "Australia OKs Facebook for serving lien notice" on Yahoo). Some some informed comments by Antipodean counsel, you can do worse than read the post on IP Wars by my WIPO colleague Warwick Rothnie.

Could it happen here? CPR 6.3 (1) permits a claim form to be served by any of the following methods:
"(a) personal service in accordance with rule 6.5;
(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction A supplementing this Part;
(c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;
(d) fax or other means of electronic communication in accordance with Practice Direction A supplementing this Part; or
(e) any method authorised by the court under rule 6.15."

As for other methods of service, CPR 6.15 provides
"(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule –
(a) must be supported by evidence; and
(b) may be made without notice.
(4) An order under this rule must specify –
(a) the method or place of service;
(b) the date on which the claim form is deemed served; and
(c) the period for –
(i) filing an acknowledgment of service;
(ii) filing an admission; or
(iii) filing a defence."
That appears to be, if anything, sligjtly broader than Reg 6460 of the Court Procedure Rules of the Australiabn Capital Territory under which service through Facebook was authorized.    I have to say that I think service could be effected through Facebook or some other social networking site here.