Serving Defendants via Social Media
Long-time subscribers to Constructive Notice may remember the 2011 item about Using Facebook for Service of Process. At that time, we noted that the practice seemed confined to Commonwealth countries, but that those interviewed for the article thought it may be used in the in the U.S. in the future.
It looks like the future may have arrived.
There is a bill pending in the Texas House of Representatives that would permit substitute service on defendants using social media. The bill, HB No. 1989, permits a court to prescribe service by “an electronic communication sent to the defendant through a social media website if the court finds that:
(1) the defendant maintains a social media page on that website;
(2) the profile on the social media page is the profile of the defendant;
(3) the defendant regularly accesses the social media page account; and
(4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.”
You can read the full text here.
COMMENT:
The bill as written provides no guidance concerning the kind or degree of proof required to meet the threshold, or how such evidence would be gathered. For instance, would an affidavit from the plaintiff suffice? Or, would information about regularity of access and average length of visit need to be obtained from the social media service? This could implicate the service’s contractual privacy policy and probably require a subpoena. What happens when a putative defendant has actually died, but their social media accounts are being continued by their digital executor, unbeknownst to the plaintiff? The good news at this point is that the bill has only made it as far as the initial committee stage. It might take a while until passage or it may never see the light of day. But one gets the feeling that, eventually, it’s going to happen somewhere.