Australian court rules that Facebook "Wall" scribbles are legal notice

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25 Responses to “Australian court rules that Facebook "Wall" scribbles are legal notice”

  1. Anonymous says:

    Tukuan, what a GREAT use of the quote! Love it! Thank you!

    I wonder if the Australians just wanted to be first in something … anything.

  2. tastypopsicle says:

    I thought I’d be more concerned about this than I have found myself to be. Reason being: in the States at least, legal notice is typically delivered in the printed newspaper. In Chicago where I live we have two, some might argue, equally powerful newspapers. And like our north side and south side baseball teams you choose sides quickly. In all my years here I have probably read the Suntimes a couple of times. And although I have had a subscription to the Chicago Tribune for years I find I hardly have the time to read it much less peruse the legal notices section each day (it’s rather lengthy and irrelevant after all).

    So how is a newspaper any different or better than a website?Perhaps one could argue that at least the newspaper has a record of it. But with newspapers going out of business how are they any more reliable? Perhaps there’s a more appropriate middle ground that includes online functionality sans Myspace.

  3. Takuan says:

    in all truth, the law has been so raped by process that the only defense is to never expose that which can be taken. Marry well, let one partner be the clean one, let the other be loud, bereft of assets and judgment proof.

  4. HornCologne says:

    Ah, Takuan, you so beat me to the punch with the Leopard quote – thank you for being on the same wavelength!

    As to one partner being bereft of assets, Italian law allows couples to keep their assets separate after marriage. Since going bankrupt means your creditors can take everything you own but the bare minimum needed to survive (also defined by law), many businessmen own nothing but one chair, one table and a bed, on paper. They are also *very* nice to their wives … hm, good system, actually.

  5. cryptique says:

    The headline for this BB post is misleading, as ToyG alluded to in comment #17. The notification was not to be made by a “Wall” post, but rather by a private message viewable only by the owner of the Facebook account.

    More info in this Yahoo news story:

    http://news.yahoo.com/s/ap/20081216/ap_on_hi_te/as_australia_facebook

    As for the precedent that this sets … yes, it troubles me, but this is clearly a case where the intended recipients have done everything they can to dodge the notice, and I am not opposed to exploring new means of delivery in such cases. I do think such means should be reserved solely for cases where the subjects of the notice have deliberately (and successfully) defied all conventional attempts at service.

  6. clayrab says:

    “It’s like serving notice on me by sticking a post-it on a toilet wall on which someone has written “Cory wuz heer” and declaring it legal.”
    Hilarious!

  7. clarity says:

    Hey commenter #5,

    Did you know that an Australian invented the Black Box flight recorder in 1958?

    Or that the electric drill was patented by Melbourne inventor Arthur James in 1889?

    How about the Telephane? Invented by Henry Sutton in 1885, the Telephane used telegraph lines to transmit visual information. This technology eventually become the Television.

    Professor Graeme Clark from the University of Melbourne invented the cochlear implant, aka, the Bionic Ear.

  8. lone sloane says:

    via the Volokh Conspiracy:

    Judge: Counselor, why didn’t you file an answer, or at least move to extend time? You were served via Facebook in plenty of time before the deadline.

    Attorney: I was suspicious of opening a link to a case with the caption Goatse v. Tubgirl.

    Judge: What’s wrong with it? Mr. Goatse appears to have a valid claim against for negligence on the part of this female plumber.

    Attorney: I’d like to direct the Court’s attention to a photograph that I have marked as Defense 1…

  9. clarity says:

    *became the Television.

  10. Takuan says:

    abrupt end, but stornelli amorisi more or less

  11. Flashboy says:

    There’s a bit more to it. Courts aren’t reckless. Before allowing substituted service in this manner, Master Harper (not an Anne McCaffrey character) of the the ACT Supreme Court was satisfied that:

    - All other steps normally taken to effect service had not been succeeded.
    - The accounts were almost certainly those of the people concerned. Names and dates of birth matched and each had the other listed as “friends”. (There may have been more detail that I’m not aware of.)
    - The people in question were active users of their Facebook accounts and thus were likely to effectively receive service through FB.

    The court was therefore satisfied there was a reasonable prospect of success for service in this manner.

    Laws in the Australian Capital Territory (ACT) have allowed service through email and fax for some years now with no apparent issues. Service has been effected in other Australian jurisdictions via text messages to mobile phones.

    Other courts would look at the individual case before allowing service in a particular manner, such as via mobile, Facebook (or, for the sake of argument, other networking sites).

    So legal notices to inactive/little-used accounts on obscure networks are not a reasonable outcome of this decision. That would not be effective service.

  12. Simon Bradshaw says:

    [Disclosure: I've done pro bono legal analysis for the Open Rights Group, which Cory is on the Advisory Council of.]

    Cory,

    Like you, I was initially surprised and somewhat alarmed by this, but having read the linked report I am inclined to agree with Flashboy@13.

    I’m not familiar with Australian civil procedure, but I assume that, like may other aspects of the Australian legal system, it is similar to that in England. (I don’t say ‘the UK’ because Scotland and NI have separate systems.) The Civil Procedure Rules for England and Wales lay down strict conditions for serving legal documents, and in general you can only serve by email to an address that the other party has specifically agreed is good for that purpose (CPR 6.3(1)(d), Practice Direction 6A 4.1(1)). The rules even say that you must ensure that your message isn’t in a format unreadable by the other party or so big it will bounce.

    However, there is an ‘if all else fails’ clause at CPR 6.15 that allows you to apply to court for permission to serve in a non-standard way in the current case. The criteria for doing so are laid down by PD6A 9.2:

    Where the application for an order is made after the applicant has taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must be supported by evidence stating –
    (1) the reason why the order is sought;
    (2) what alternative method or alternative place was used;
    (3) when the alternative method or place was used; and
    (4) why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place.

    Use of SMS texting is given as a specific example of such non-standard service, so I think that Facebook internal email or a Wall post could be a method you could apply to use. But you’d have to satisfy a judge (and in a matter as big as a house repossession, that would be a High Court Master, i.e. pretty senior) that you qualified under the steps above. That includes step 4, so – applying the usual test for making an application in court – you would have to convince the judge that it was more likely than not that service by such a method would reach the other party. Evidence that the Facebook account was regularly used would probably do that, but I’d be bracing myself for a tough time making the case!

    It looks as if the Australian court applied similar criteria, so I’d say that this does not set a general precedent and was probably only allowed in this instance because the claimants/plaintiffs (a) had tried everything else and (b) convinced the court that a message via Facebook was likely to be seen. It doesn’t give Australian litigants carte blanche to sue people via ten-year-old AOL accounts.

  13. angusm says:

    I.M.A. Landshark, Esq. has served you using the MyProcessServer application:

    [Accept] [Ignore] [Block this Application]

  14. misshallelujah says:

    Takuan @#1:

    That was the exact same thing I thought of when I was reading the story! Brilliant!

  15. Simon Bradshaw says:

    Oops, never try to read the CPR before your second cup of coffee of the morning.

    The rule I quoted is for when you ask the court to retrospectively approve non-standard forms of service. I should have read one para up and quoted 9.1, which is about asking permission in advance – which is what you really should do, as a judge is much more likely to give you even some sympathy if you ask ahead. The criteria are pretty much the same though.

  16. toyg says:

    From what BBC says, the notification was actually sent as “Personal Message”, to avoid other people seeing it. That feature usually triggers an email notification, and email had already been used in extreme cases (as it’s usually very effective).

    So, all in all, it’s a fairly effective way of doing it — IF the account shows signs of recent participation (e.g. status changed in the last 24 hours etc). These guys were clearly dodging the notification (11 attempts!) as they knew it was coming (it’s for a mortgage repossession).

  17. Anonymous says:

    Treating a web site as akin to a physical address is progressive. The old-fashioned method that this is replacing is publishing notice in a newspaper. People may not read their Facebook wall very often but I’ll be the people with Facebook pages read the daily newspaper even less often.

    This seems quite progressive to me. The alternative is to someone be untouchable by the courts because they move around a lot despite the fact that they maintain a robust online presence.

  18. Red Leatherman says:

    I wonder if they got the idea from watching RIAA serve papers on vacant houses?
    Seems the judge in the case I read about dropped the case though.

  19. JohnLayman says:

    This is actually a good thing, trust me on this. Working in a law office, legal notice can be a tiny paragraph in the classified section of a paper. (run once a week for four weeks)

    I can’t imagine that ANY of the people we have provided notice for have seen that, and it seems to me that Facebook is a much better method of contact.

  20. nigelstwin says:

    Another feather for Takuan’s hat:
    I thought of that same situation, although I thought of what Prostetnic Vogon Jeltz had said about the demolition of the earth rather than the decidedly gullible Mister Prosser.

  21. Takuan says:

    ” …You hadn’t exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything.’ But the plans were on display…’ o n display? I eventually had to go down to the cellar to find them.’ `That’s the display department.’ `With a torch.’ `Ah, well the lights had probably gone.’ `So had the stairs.’ `But look you found the notice didn’t you?’ `Yes,’ said Arthur, `yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying “Beware of The Leopard”.’ — Douglas Adams.

  22. godisafiction says:

    Takuan, thank you for that much-needed dose of DNA. It warms my heart to have His words so appropriately applied to everyday life. ‘kinay.

  23. Anonymous says:

    I hope this practice doesn’t become popular.

    Another problem I can see with this form of constructive notice (essentially this is just an extension of that fiction) is spam. While the Courts may be able to satisfy that the party has been served by looking at evidence of recent activity on the account as well as evidence that points to the account being owned by the person, there is still no way of telling that the person received the papers, nor that they didn’t mistakenly trash it along with the dozens of other spam messages they received that day.

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