You’ve Been (e) Served

From e-mail, to e-shopping, to e-dating, incentive to leave your beloved computer can at times dwindle. It would seem, too, that the law community has caught on to this ‘e’ trend , adding “e-service” to the ever-growing list of electronic conveniences.

This could mean the gradual demise of the classic “you’ve been served” scene, which, at least as far as TV in concerned, usually involves a burly and unpleasant character who knocks on your door to deliver the bad news – legal papers and the lawsuit they foreshadow. Explained in the recent report At Your Substituted Service,[1] however, e-serving does have its perks.

Traditional means of serving an individual generally involves the arduous process of physically tracking down the involved party. In a mobile world where people change apartments, cities and even countries fairly easily, this can be a slow, expensive and unsuccessful process. As the legal process certainly doesn’t need help becoming more slow or costly, it is of no surprise that e-mail has become an increasingly accepted mode of service for Canadian courts.

However, e-mail accounts are easily changed, the report notes, so still pose challenges when tracking a party down. It follows then that Australian courts have taken internet use one step further, permitting individuals to be served via Facebook’s private messaging feature.

The social networking site offers a number of benefits over e-mail, says the report. Firstly, by browsing one’s public Facebook profile, it is easy to tell if the account is active. E-mail offers no such luxury, so can lead to dead ends. Facebook also lists a user’s “friends” – individuals that can be contacted or potentially served should the intended recipient prove unreachable. Further, Facebook displays a profile picture so can verify the correct individual is contacted.

The Canadian courts have yet to comment on Facebook as a tool for serving legal documents, though the Facebook profile has already made an appearance in a number of insurance cases where a victim has claimed an injury has seriously harmed their quality of life. Facebook photos been used to suggest otherwise – needless to say, pictures from your latest mogul run in the Alps puts the extent of your knee injury in question.

Thus, it would seem that Facebook e-service in Canada could likely follow. As is the case with most any social networking site, however, this introduces some unique privacy concerns. 

For example, the report notes, although Facebook offers a private messaging feature, it would take one mean spirit to ‘accidentally’ post a service message on a person’s very public Facebook wall. There are privacy settings to reduce such access – but given how long it took me to find how to ‘save as’ this blog in my newly-acquired Windows XP, I can sympathize with those who cannot find or are unaware of such settings.

Further, despite the fact the internet is, at the end of the day, a public sphere, so many of us treat applications like Facebook as private domain. With Facebook profiles often an extremely glimpse into one’s life,  one cannot feel classic concerns of personal privacy versus the state lurking in the background. It will be interesting to see how both Facebook and the courts respond to such concerns as the practice develops. 

Kaley Dodds
UVic Law Student

[1] At Your Substituted Electronic Service, 2010, Alison McEwan and The Honourable Madam Justice Cheryl Robertson

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