Means of service in the Facebook era: overseas judges’ first positive responses

While in Italy lawyers and judges are still learning to live together with Telematics Civil Procedure and the discipline for administrative procedure has just entered into force, in other continents the attention has already moved to the next step, by deeming valid the use of social networks – in particular, Facebook – as means to serve a judicial document.

If, on the one hand, on several occasions Australian Courts proved inclined to admit the service of a judicial document by Facebook when the normal means are inadequate (in 2008 a Sydney court has also allowed to serve a subpoena by SMS), greater sensation was caused by the decision of Judge Matthew Cooper of the Supreme Court of Justice of New York City, who in 27th March 2015 allowed aspiring divorcée to serve her husband with divorce papers via a private Facebook message because he had no registered address and no place of employment. The decision moves from the observation that American Civil Practice Law and Rules does not require the brevi manu service.

Most recently, in 20th December 2016, also the Human Rights Tribunal of Ontario allowed a party to serve a judicial document via Facebook because the opposing party was impossible to find at the elected address.

Undoubtedly, this solution presents a lot of problems, including ascertaining that the Facebook account really belongs to the individual concerned: Australian and American Judges stressed the necessity of a proof in this sense, given by, respectively, the coincidence between personal information reported in the account and those of the recipient and by some photos posted on the personal page.

The solution adopted by American, Canadian and Australian Judges in those cases where tracking down the opposing party is impossible or where he does not want to be tracked down, is at present time totally unimaginable in system – strict like the Italian one – where the Civil Procedure Code explicitly rules the various types of service.

However, it cannot be ruled out that, in the future, our legislator could pay the same attention as the overseas judges to a means that, under some circumstances, is potentially more efficient and effective than those currently used.