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Australian Court Lets Lawyer Serve Papers Via Facebook
Posted by
kdawson
on Tue Dec 16, 2008 09:28 PM
from the super-poked dept.
from the super-poked dept.
a302b writes "A Canberra lawyer has been permitted to serve legal documents via Facebook for a couple who defaulted on a loan. He claims he needed to do this because he was unable to track them down to a physical address. At what point does our online presence become 'real?' And what opportunities are available for fraud, if social networking sites are considered legal representations of ourselves, even when they can be anonymously created under any name?"
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But.... (Score:5, Interesting)
Re:But.... (Score:4, Insightful)
Parent
Re:But.... (Score:5, Informative)
Also, the fact that there are many people on facebook with the same name, let alone false ones. For many of my friends I was only able to track them down with email addresses,
Yes, but if you were looking for a couple on facebook & found (as the article states):
You'd probably be pretty confident that you'd found the right people hey?
For the record - I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
Parent
Re: (Score:2)
I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
Too true. I wonder about the crediblity of an legal document sent to someone with an email address. I mean, you'd be sending stuff addresses like "donglecrotch@example.com"...
Although... I'd love to see that appearing in court documents, permanently attached to someone's name.
Re:But.... (Score:4, Informative)
If you're in the United States, you should read up on the E-SIGN act, signed into law in 2000 by Clinton. See here for some info.
http://www.ftc.gov/os/2001/06/esign7.htm [ftc.gov]
The law was technology agnostic. My basic understanding is that if you have prior agreement in the US to do business with another person electronically, then something like this could work in the US too. There are specific legal requirements though for serving court summons and notices, so it might not. Who knows... IANAL.
Parent
Re:But.... (Score:5, Insightful)
You'd probably be pretty confident that you'd found the right people hey?
Well, I'd be confident that I'd found someone claiming to be the right people.
Parent
Re: (Score:3, Interesting)
Sending papers by the mail for example is NOT considered good enough.
I don't see how this guy could guarantee that the users got proper notification that they did in fact get served the court papers. Short of getting the person to write a reply email confirming that they have indeed accepted the papers (which I wou
Re:But.... (Score:5, Insightful)
I wouldn't be so sure. Here in little nowhere AR I had to argue with a bank and several other businesses that I wasn't some other guy. Finally I tracked him down and we went together to straighten it out since he TOO had been getting stuff that was for ME. When we sat down together it turned out we had the same first and last names, our fathers and mothers had the same first and last names and the same middle initials. And to top it off his sister had the same name as mine(which my mom made up) so he called his mom and it turned out she was having his sister in the same hospital at the same time my mom was having mine, and when she overheard my mom talking with the nurses about the made up name she thought it was cute and named her girl the same!
So while I am sure that this lawyer probably has the right people, never underestimate the power of coincidence. After all if two people whose families have never met face to face could have so much in common in a little place like AR, imagine how many similar couples or families there could be on something as large as FB?
Parent
Re:But.... (Score:5, Funny)
some time traveler screwed it up.
Parent
Re: (Score:3, Interesting)
Re: (Score:2)
Re:But.... (Score:5, Funny)
When we sat down together it turned out we had the same first and last names, our fathers and mothers had the same first and last names and the same middle initials...
After all if two people whose families have never met face to face could have so much in common in a little place like AR...
...can't think... too many jokes... all trying to get out at once...
Parent
Re:But.... (Score:5, Interesting)
There was trouble tracing a problem with a person in our DB at a college I used to work in. They were listed in the system twice. Same Name, birthday, address, marital status, and age. In fact, the only difference was the social security number and gender. One had taken a few classes, one was full time. We spent forever tracking down the problem, assuming someone created a typo when they created the student record, then thought to call the phone number listed as their phone number (yep, same number) and they both came in. Husband and Wife were both named "Leslie" (Not common for a man, but not unheard of) both were born on the same day, in different states, and had been married for 25 years with children also attending the college. That day taught me a reminder I still keep around about jumping to conclusions. Sure, your 99.999% sure, but that leaves 1 out of 100,000, and someone has to be that one...
Parent
Re:But.... (Score:4, Funny)
Am I the only one annoyed by gender-ambiguous names?
The worse is with gender-ambiguous voices over the phone. I'm sure I have upset many people over the years.
Parent
Re:But.... (Score:5, Insightful)
For the record - I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
Why?
Personal service is preferred, and process servers go to extreme and often comical lengths to put the paper in your hand, but some people refuse to accept service. Should you have to continue a manhunt for a year, at a cost of tens of thousands of dollars, in order to exercise your legal rights? How would you feel if someone potentially owed you thousands or millions of dollars and you couldn't get it because they wouldn't open the door?
Like all forms of service other than personal service, it's a last resort after a documented showing of diligence. At some point, you're intentionally avoiding being served, because letters and messages have been left for you, and if that's the case, the notice function of service has been fulfilled. Like everything else in law, it's a balancing of competing needs. You also always have the opportunity to fight a default judgment if you can legitimately demonstrate that the dozens of attempted services were missed because you were actually, truly not available.
As you can imagine, the chances of you disappearing from society and leaving no trace of how to contact you with employers, neighbors, family, and friends is fairly small...unless you're running from something.
Parent
Re: (Score:3, Interesting)
As you can imagine, the chances of you disappearing from society and leaving no trace of how to contact you with employers, neighbors, family, and friends is fairly small...unless you're running from something.
I know a guy who thought it smart to just "disappear" for a year, touring the world.
When he came back, his large real estate holdings were foreclosed, because there was problems with some tenants who failed to pay their utility bills and just left (some even taking the keys with them...). The company that my friend had hired to look after the building failed to do anything about the situation, so the city moved to confiscate the building in order to pay the bills.
Re: (Score:3, Interesting)
Personal service is preferred, and process servers go to extreme and often comical lengths to put the paper in your hand, but some people refuse to accept service. Should you have to continue a manhunt for a year, at a cost of tens of thousands of dollars, in order to exercise your legal rights? How would you feel if someone potentially owed you thousands or millions of dollars and you couldn't get it because they wouldn't open the door?
I'd be more upset at the system that allowed that rather than the indiv
Re:But.... (Score:5, Informative)
For the record - I don't think anything other than in person should be a legal way to serve, but email is not superior to Facebook.
TFA Clearly states that the Court only allowed this because it was presented clear evidence that every other avenue had been attempted and exhausted to serve the couple. Our Courts have allowed in the past innovative approaches to serve papers where defendants have failed to respond to traditional means or attend court in their own defence.
Also note that courts in Australia have DENIED such requests in the past, as they were not convinced in those cases that other avenues had been exhausted.
This approach is not "legal" per se but rather only as instructed by the Court in this case; our Judges have discretion in cases where parties are evidently avoiding the serving of papers through "traditional" channels.
This is a story about a clever investigator providing a lawyer with another approach to serve papers after all available means had been tried and failed. And it worked, the day after this was publicised locally, lo and behold the folks in question re-appeared at the address they are about to be evicted from and basically confirmed that they had indeed been found.
err!
jak.
Parent
Re:But.... (Score:4, Funny)
every other avenue had been attempted
Lawyer: They won't be served by any other means.
Judge: Did you try carrier pigeons? Ducks using semaphore? Pelting their door with artichokes to form Morse code? Cucumbers too?
Lawyer: Yes, we tried all that- including the singing lemurs. Now, can we please just serve them on facebook?
Judge: Blast! I was sure the lemurs would work. Well, we haven't even started with the ones involving mimes... don't start with those crazy ideas of yours just yet!
Parent
Re: (Score:2)
Oh I don't know. It's all become such a big mess, no wonder we need lawyers to clear up these things.
Facebook no different to email. (Score:5, Informative)
Yawn - Facebook is no different to email & US courts have served via email [nycourts.gov] in the past.
One crappy, lossy, non-guaranteed electronic communications medium vs another.
Parent
Re:Facebook no different to email. (Score:4, Insightful)
Actually, there is a difference. In general, you are pretty certain who an e-mail address goes to.
If the ISP is contacted to obtain a person's e-mail address, they can definitely provide the info, they can also match the user up with customer billing records. This information is fairly unlikely to be fake.
With e-mail, your address may also be exchanged in advance, i.e. through some other means of communication, so the person serving can show solid evidence that the e-mail address belongs to the person.
I.e. if the legal matter concerns copyright material posted on blah.example.com, and the WHOIS info for that domain lists the e-mail address, then there is PROOF that the e-mail address is provided by a person who controls the domain.
However, with facebook, the target party is found by a simple search for their name and (possibly geography).
Since multiple people have the same name, even in the same area, it is unreasonable to expect you have verifiably served the right person.
You may have accidentally sent the information to the wrong profile.
Also, the purpose of facebook (for many users) is simply to display profile information.
Many users don't expect to receive messages of any sort, so they don't check them.
This is in stark contrast to an e-mail service whose sole purpose is to receive messages, and is effective, so long as the account is not abandoned.
Parent
Re:Facebook no different to email. (Score:5, Informative)
If the ISP is contacted to obtain a person's e-mail address, they can definitely provide the info, they can also match the user up with customer billing records. This information is fairly unlikely to be fake.
An ISP can provide an email address, but hardly anyone uses an ISP's email - they use one of the big webmail providers. So there's no guarantee the recipient will check their ISP provided mailbox.
However, with facebook, the target party is found by a simple search for their name and (possibly geography).
Since multiple people have the same name, even in the same area, it is unreasonable to expect you have verifiably served the right person.
Since this is slashdot, it is unreasonable of me to expect you to have read the article - so here's the relevant quote:
Parent
Re:Facebook no different to email. (Score:4, Funny)
One crappy, lossy, non-guaranteed electronic communications medium vs another.
Email version:
Deposition Subpoena to Testify
GREETINGS: YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON THE FOLLOWING WITNESS:
John Doe of 53 Sanity Street SanesVillie
Facebook version
lolz. Hey John. U been summ'd to Court. cu there. haha. sucker!
Parent
Re: (Score:2)
The real problem would be i
Re: (Score:2)
It's in the article (Score:3, Informative)
From the article: "McCormack argued that he knew he found the right people online because they listed their birth dates, full names, and they had listed each other as friends, according to the AFP. This was apparently enough to convince the judge, who said that McCormack could serve the couple Facebook papers as long as he also left them at their last known address and also via e-mail.
Obviously i
Somewhat reasonable (Score:4, Informative)
If the couple was in hiding but was maintaining an active presence on Facebook, then I can see how this would be reasonable. The lawyer was required to deliver the papers to the last known address is addition to serving notice via Facebook. Interesting, the profile disappeared after the papers were served...
Of course, it will still be up to the judge to decide if the experiment was a success. If he decides that the papers were not properly served even after allowing it, he won't give a summary judgment. Alternatively, the judgment could be vacated if the couple later challenges the judgment and the next judge finds that papers were not properly served.
(IANAL, but I did stay at a Holiday Inn express once!)
Re: (Score:3, Funny)
Re:Somewhat reasonable (Score:4, Funny)
IANALBMHI?
Parent
Re: (Score:3, Funny)
If I ever get sued for anything I am so working that line into my defense.
One more reason (Score:2, Insightful)
Reason #9,382,329 NOT to waste time on those stupid "social" networking sites.
What next? (Score:2)
Wait, via Facebook? (Score:5, Interesting)
Couldn't the lawyer request Facebook give up the goods on the couple?
This could be used for (Score:4, Insightful)
The question I have is how dose he know they read it? As I understand it, the key is making sure the person knows they have been served.
Re:This could be used for (Score:5, Interesting)
That's a very valid point.
"Yes your Honor, I do recall receiving a message with that subject/content but I deleted it assuming it was spam or a virus. After all, what kind of an idiot would serve a legal document via Facebook?".
Aside from the fact that inferring that a judge is an idiot is seldom a good idea, it would appear to be a valid assumption - it's what I would do if I saw an email with a subject that looked like it contained a legal document (or any attachment from someone I didn't know), and ditto for a facebook message if I had a facebook account.
Parent
Proven by the RIAA (Score:2, Interesting)
Necessary or Just Cheap? (Score:2)
"He claims he needed to do this because he was unable to track them down to a physical address."
He's not necessarily supposed to be able to. That what they hire investigators for, and process servers to deliver them. My money says he just wanted to keep as much of his money as he could.
The usual excuses will now be compounded with the excuses familiar to anyone who's been on line for long: "I downloaded it with my email, but it got corrupted." "My hard drive crashed" "Someone hacked into my computer/account
At what point isn't an online presence 'real'? (Score:5, Interesting)
What trog wrote the summary?
Most of my clients know me only via phone number, email address, or chat alias. I still produce work and they still pay me.
My bank and my credit cards knows me by a made up user name. They still let me move my money around.
Amazon only knows me by a made up name and they trust me enough to take my money and ship goods to some address I just gave them.
The only thing controversial about serving documents via Facebook is that I don't know how you can verify delivery, which is kind of the whole point of serving papers.
Re: At what point isn't an online presence 'real'? (Score:4, Insightful)
In Australia to get a bank account you have to provide 100 points of ID. So my bank knows who I am.
Amazon is a company that provides a service, they don't care who you are as long as they get their money(eg. like a supermarket etc.).
I imagine your clients would regret not having more information about your identity if they paid you and you failed to produce the work required.
Online identity could be the same as physical identity if online services required you to actually provide some form of identification(eg. credit card number, copy of driver's license, etc.) although I've always been horrified at how little is required to prove one's identity and how much that identity gains you.
If I received papers via Facebook I'd just ignore them, as there is not way anyone else could know whether I received them, or that the account was actually me.
- Jesse McNelis
Parent
text of summons (Score:5, Funny)
U R SERVED!! U lamers 2 appear B4 judge Dec 19 700 hrs re home loan U "forgot" 2 repay.
G'day.
What advantage does the legal notice server get? (Score:3, Insightful)
No worries. (Score:5, Funny)
They can just pay back the loan with WoW gold.
Re:WTF -- this is OLD news (Score:5, Funny)
ah, if only there were a "troll but true" comment rating.
Parent
Re: (Score:2)
I'm just thankful the higher-ups running the Exchange server required permission to send receipts...
Tools > Options > E-mail Options > Tracking Options.
It's not your system administrators who make that decision.
Re: (Score:3, Informative)
Just about all such settings are enforceable via group policy these days, and as such can be 'enforced' by your system administrator. It's easy enough to get around though that I don't think it would stand up in a court of law.
Re: (Score:2)
It's even easier than that. You saw the message but assumed it was spam and deleted it without reading it. It's possible to prove that the email made it to your inbox (assuming someone, somewhere is keeping logs), but it's not possible to prove that your lack of response was anything other than that you assumed it was spam and deleted it.
It makes me a bit mad that someone would try and get out of their debts by just hiding, but me getting mad doesn't make this solution any more valid, and if someone tried i
Australian Debt Recovery anything goes (Score:5, Interesting)
I'm surprised they even have lawyers in that colony of misfits.
Your not too far wrong sadly enough.
This story is really about australian debt recovery. In australia short of actual physical violence you use any tactic you like to recover debt.
You can even make threaten violence and scare the sh*t out of someone to get your money and the court will let you get away with it.
this is a link to a few who got fined. NOTE: ONLY FINED
http://www.fairtrading.qld.gov.au/OFT/OFTWeb.nsf/Web+Pages/3C3C486D9B068FDF4A256FDC007E3CB5?OpenDocument&L1=News [qld.gov.au]
Parent
Re:Australian Debt Recovery anything goes (Score:5, Informative)
While I understand this is the usual mode of operation for debt collectors (from personal experience), they are actually very strictly bound to various legal codes, including codes of conduct. They violate them often at their own peril. They routinely end up in the courts for this activity, the problem is that for every agency that goes under for harassment, there are 30 more in the queue lining up to take over.
* a little bit unrelated to your post *
It's a pretty sleazy industry, if you're at the wrong end of one of their phone calls, simply tell them you will only communicate via the written word, and that you wont hesitate to go to the ACCC (And numerous other watchdogs) if they fail to abide by your directive to do so. Don't be afraid to do this either, you might be in debt, but you still have rights - and most of us do actually like to keep some shred of dignity about us, even in our worst moments.
Believe me, these bastards wont hesitate to tell everyone all about your financial situation, including your boss, your friends, family, their aim is to cause embarrassment and get a quick settlement - they get a cut of this, so it's in their interest to do it fast.
If you are in debt and really can't pay at their stupid rates, then you are actually better off going to court and discussing your options with a judge. They are far more understanding, compassionate, and willing to intervene so you can continue to live your life.
Back on topic, there have been other precedents to inform people of such things via the internet, it is rare, but it happens. I live in Asia now, it's even worse here, if they can't find you the law says they have to publish the details in a paper of general circulation - some of it is amusing to read, but mostly it's just sad.
Parent
Re: (Score:3, Interesting)
It's a pretty sleazy industry
It is a very sleazy industry. I just had issue a month ago with a phone company when I cancelled my account. They never issued a final bill; instead referring the matter straight to their preferred debt collector. Funny that the debt collector had the correct address but the phone company swears black and blue that they never had my correct address.
I ended up on the wrong end of the phone trying to get a bill out of the debt collector. Spent nearly 6 hours being transferred around and around on a few di