January 2, 2010


By Abu Bakar Munir

Our lives are being “invaded” by the Social Networking Sites (SNS), allowing us to socialize in cyberspace. We are facing the world of Facebook, MySpace, Friendster, Twitter, etc. These SNS are extremely popular. The users and usages are very diverse; from children as young as ten years old to corporate and country leaders; from just chitchatting and posting photos to business and science applications. Obama uses SNS to get into, and, perhaps remain in power. Only recently in July 2009, Bill Gates said that he decided to give up using Facebook as he does not want to have too many friends. He said, “Facebook was just way too much trouble so I gave it up”. Social networking services are increasingly being used for criminal investigations. Information posted on the sites has been used by the police, probation, and university officials to prosecute users of the sites. Now, SNS are crawling into the courtrooms.

The Australian Capital Territory Supreme Court in the case of MKM Capitol Property Ltd v. Corbo and Poyser, ACT Sup Ct, 12 December 2008 (No. SC 608 of 2008) has allowed substituted notice be served through the Facebook. MKM, a lending company, obtained default judgment against two defendants. The company has made several attempts to reach the defendants, but still experienced difficulty serving the default judgment using traditional methods. MKM’s lawyers then discovered that both defendants had active Facebook profiles, and that they were “friends” with one another. In this case, the friends list of both defendants was visible. The lawyers sought permission for default judgment to be served on both defendants via Facebook. An application for substituted service was granted.

Just eight months earlier in April, in the case of Citigroup Plc Ltd v Weekaroon [2008] QDC 174 (16 April 2008), a similar application was made for substituted service of a statement of claim on a defendant through the Facebook. In rejecting the application, the Queensland District Court Judge Ryrie said:

"I am not satisfied in light of looking at the – the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the person identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant".

What are the distinguishing factors between MKM and this case that led to the differing of the decisions? In the former, MKM’s lawyers were able to show that the Facebook profiles were those of the defendants. The lawyers demonstrated that these profiles listed various personal details, such as their dates of birth, which were known to MKM. Neither defendant had used any of the various privacy settings, which would have restricted the outside world’s access to their pages. In granting the application, the judge in the MKM case even stipulated that the documents were to be served privately, which rules out the option to post anything on the defendants’ “walls” – the Facebook equivalent of a public notice board.

On 16 March 2009, the New Zealand court followed MKM case. In the case of Axe Market Gardens Limited v. Axe CIV-2008-485-2676, the High Court of Wellington granted an application for a substituted service on a defendant in the U.K through Facebook. In this case, the plaintiff company had difficulties in locating and serving the defendant. The latter was living in the U.K but his exact location was unknown. The defendant had corresponded via email and was also known to have a Facebook site. According to the New Zealand Free Press, “Justice Gendall did not bat an eyelid in the court room when approving the order after being assured that newspaper adverts could not be effectively targeted”.

The Canadian courts in several occasions have had to deal with the requests to produce personal information from the website of Facebook as evidence in litigations. The courts had to decide on the admissibility of the evidence. So far, in all the cases, the courts have decided that the evidence taken from the Facebook webpage is admissible in court. In the case of Kourtesis v. Joris (2007) O.J. No. 5539 (S.C.J), the request was for four color photos taken from Facebook. The Ontario Superior Court of Justice held that the photographs were highly relevant and admissible. The same court had another opportunity in the case of Murphy v. Perger (2007) O.J. No. 5511 (S.C.J). The judge ordered Facebook pages to be produced because of the public nature of the website.

In the case of Leduc v. Roman (2009) O.J. No. 681, Justice Brown concluded that a party who maintains a private or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. He went further stated that both are obliged to identify and produce any postings that related to any matter at issues in action.

In the most recent case of Terry v. Mullowney (2009) NLTD 56, the defense lawyers were able to use the Facebook activities of the plaintiff to argue that the plaintiff exaggerated his injuries and claimed. The court accepted this evidence and held that without the evidence he would have been left with a very different impression of Mr. Terry, the plaintiff. Justice Adam stated, “Mr. Terry was claiming a $ 1.5 million payout and was given $40, 000 instead. His credibility was undermined because of his activities as displayed on his public profile on Facebook”.

Obviously, SNS and Facebook in particular are delighted by this court endorsement. In response to the decision of the Australian court in MKM case, Facebook stated, “We’re pleased to see Australian court validate Facebook as a reliable, secure and private medium of communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people’s lives…” Is this a beginning to the many invasions in the future? Would it spread into other courts in other countries? SNS in future, perhaps, would also mean Substituted Networking Services.

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