This post was written by CILA's fantastic legal intern, Nancy Benet. Thank you for all your research and hard work, Nancy!
Service of process is a concept in civil procedure that has always been difficult for plaintiffs to navigate. Although seemingly displayed as relatively simple in television shows and movies that depict the legal world, service of process can be a complicated task. A plaintiff must ensure that process is served correctly to actually sue a defendant. Correct service includes ensuring that the defendant is served in the right jurisdiction, through the appropriate channels, and by the right people. However, this poses a question: What if the defendant cannot be located?
Courts have taken the difficulties a plaintiff might undergo when looking for a defendant into account throughout time. For instance, they have considered methods of service that do not include serving a defendant personally, such as service by publication or by mail. The courts’ most recent substitute for personal service is service via social media.
Service via social media allows a plaintiff to serve a defendant with service of process through untraditional channels such as Facebook, Twitter, Linkedin and other social media platforms. The practice has been adopted by several jurisdictions as an alternative method of service of process when a plaintiff is unable to personally serve a defendant.
Service by Social Media
Quick tips for Texas
Tex. R. Civ. P. 106 requires:
- Sworn statement with facts that show personal service was attempted but was unsuccessful
- Evidence that the technology being used to serve process actually belongs to the defendant
- Evidence that defendant uses or recently used the technology regularly
Service via social media has been allowed in the following instances throughout the U.S.:
- Twitter was allowed as a channel through which to serve process when the defendant company had mainly a virtual presence, and a lack of physical point of contact.
- Facebook private message was allowed as a method through which to serve divorce papers when other methods failed.
- Twitter was an acceptable method through which to serve process to a foreign national, who could not be physically located.
- Facebook, Instagram and Linkedin, when used simultaneously, were allowed as a method through which to serve process when other methods failed.
The Need for Alternatives for Traditional Service of Process
The difficulties plaintiffs experience when attempting to serve a defendant are illustrated in the various rules that states and the federal government have passed in order to facilitate the process. Courts have adopted rules in the past that allow for other forms of service. Alternative methods for service of process include but are not limited to service by publication and certified mail.
In Texas, service by publication is laid out in the Texas Rules of Civil Procedure. Rule 116 allows for a citation to be issued by publication either in a newspaper or on a public information internet website. Tex. R. Civ. P. 116. The Texas Rules of Civil Procedure sets out the guidelines for serving process by publication, which include guidelines regarding how many times one must post the citation, and in what time frame. Id.
Nationwide: When is service of process via social media allowed?
As a general matter, service of process through social media is still a method of last resort. Courts have accepted service through Twitter, Facebook, and other social media platforms in cases in which the plaintiff attempted every method of service of process prior to attempting to serve through social media. St. Francis Assisi v. Kuwait Fin. House, No. 3:16-CV-3240-LB, 2016 WL 5725002 (N.D. Cal. Sept. 30, 2016); Baidoo v. Blood-Dzraku, 48 Misc. 3d 309 (N.Y. Sup. Ct. 2015).
However, courts have denied a plaintiff the ability to serve via such platforms in various cases as well, illustrating some of the reasons as to why this is a method of last resort in the first place. Qaza v. Alshalabi, 54 Misc. 3d 691, 43 N.Y.S.3d 713 (N.Y. Sup. Ct. 2016)
Although social media creates possibilities for plaintiffs who in other circumstances might not be able to properly serve a defendant, critics of service via social media allude to the many problems that may arise from allowing such service to be accepted. For instance, critics pose the issue of authenticity. Emily Davis, Social Media: A Good Alternative, for Alternative Service of Process, 52 Case W. Res. J. Int'l L. 573 (2020). Due to the facility of creating a fake social media profile, allowing plaintiffs to serve process via social media could result in them serving someone who is not in fact the defendant. Id. Nonetheless, the rise of social media as a main form of communication has paved the way for many courts to allow it to be a method of serving process. Id.
Service via social media has proven to be efficient when serving foreign nationals. In St. Francis Assisi, the United States District Court for the Northern District of California found Twitter to be an appropriate method for service of process when the defendant, a Kuwait national, could not be located and other attempts to serve process through traditional methods failed. In St. Francis, the defendant had an active Twitter account and continuously used it to communicate with his audience. Id. The court in St. Francis looked to other cases such as Federal Trade Commission v. PCCare Inc., in which a court for the Southern District of New York found that service by email and Facebook was acceptable when previous efforts to serve them failed and the accounts were registered under the defendant’s names, and were used frequently for communication to come to their conclusion. F.T.C. v. PCCare247 Inc., No. 12 Civ. 7189 PAE, 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013).
In Baidoo, the New York Supreme Court held that divorce summons could be served by a Facebook private message to a spouse’s social network account when efforts to serve the spouse personally, and all other substitute services, failed. Baidoo, 48 Misc. 3d 309, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015). New York Law required the plaintiff to show that they were unable to personally serve the defendant, that it was impracticable to serve the defendant by substitute service, and that service via Facebook was reasonably expected to give the defendant actual notice that he was being served. Id.
Evidently, guidelines are emerging among jurisdictions in order to ensure service via social media is being done the right way. Harleysville Insurance Company of New Jersey v. Mega Security Corp. was no exception. In Harleysville, service had to be sent through email, Facebook, Instagram, and LinkedIn for three consecutive weeks in a row. Nonetheless, this method was only accepted after numerous attempts to serve the defendant personally. DGRNews, DGR Serves First Instances of Service via Social Media Through Linkedin & Instagram, DGRlegal.com, https://www.dgrlegal.com/service-via-social-media-linkedin-instagram (last visited June 25, 2021).
Most recently, the Democratic National Committee obtained a leave of court to serve process via Twitter against Wikileaks due to its virtual rather than physical presence. When other methods to serve Wikileaks failed, resulting in undeliverable emails, a court granted the motion to serve process through a tweet to Wikileaks. Debra Cassens Weiss, DNC lawsuit against Wikileaks served via Twitter, abajournal.com, https://www.abajournal.com/news/article/dnc_lawsuit_against_wikileaks_served_via_twitter_after_federal_judge_all (last visited June 25, 2021).
However, this is not to say that courts will allow social media as a method to serve process in every instance in which other methods fail. Courts have been hesitant to accept social media as a method to serve process in certain situations. For instance, in Qaza v. Alshalabi, the Supreme Court of New York’s King Country denied service of process via Facebook when the plaintiff failed to establish that the defendant’s Facebook account was still being used by the defendant. Qaza v. Alshalabi, 2016 NY Slip Op 26402, 54 Misc. 3d 691, 43 N.Y.S.3d 713 (Sup. Ct.).
Bottom line, the guidelines for service of process via social media varies by jurisdiction, and on a case-by-case basis. As a consensus, courts seem to indicate that as long as it can be shown to the court that the defendant’s correct social media has been identified, and it is probable that they will receive service in that fashion, that social media is an acceptable way to serve process.
The Rules in Texas
Texas recently amended its Rules of Civil Procedure to include service of process via social media. Tex. R. Civ. P. 106 was revised in response to section 17.033 of the Civil Practice and Remedies Code, which called for the Supreme Court to adopt rules to provide for substituted service of citation by social media. The amended Texas rule illustrates that “upon motion supported by a statement sworn to before a notary or made under penalty of perjury stating facts that show personal service was attempted but was unsuccessful, a court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology.” Id.
Although the rules have officially accepted social media as a method to serve process, Editor’s Notes on the rule still insist on attempting other forms of service beforehand. Id. These notes also state that when deciding whether or not to permit electronic service of process, a court should consider whether the technology being used to serve process actually belongs to the defendant and whether that defendant uses or recently used the technology regularly. Id.
How will these rules be enforced?
Although the new rules outline some guidelines for when service via social media might be acceptable in Texas, the exact instances in which a judge will find it as a permissible service method in Texas are still unclear. An article by the Texas Bar Journal looked to earlier legislative efforts to help guide how Texas might adopt these new rules. In a previous bill by the Texas legislature, HB 1989, a court would have used several factors in order to determine whether service by social media was appropriate. John G. Browning, Service of Process Via Social Media Comes to Texas a Look at Rules, Concerns, and What It Means Going Forward, 83 Tex. B.J. 320 (2020). These factors include: whether a party to be served has active social media profile on the site selected, whether social media profile is actually the profile of the party, whether the party uses social media profile on a regular basis, and whether the party could reasonably be expected to receive the notice if the electronic communication is sent to the party's social media account. Id.
These guidelines are like those other states have adopted, as illustrated by the cases discussed previously in which a plaintiff either had to serve a defendant multiple times in order to ensure service, or in which a plaintiff had to ensure the social media profile was used consistently in order to prove authenticity. It is evident that there is a consensus among states as to the concerns that exist regarding service by social media, and they are taking measures to address them.
The courts’ willingness to adapt to change when it comes to service by social media could be an indicator that service by social media will over time become a very normal way to serve process, rather than just a substitute. However, the traditional values of the U.S. court system, and their commitment to authenticity and due process could still prevent them from adopting it fully with no restrictions. Nevertheless, in the past few years, Facebook went from an absurd method to serve process to a method supported by law in various states. This has illustrated a big adaption to the age of social media, and to the way that humans, companies, and other entities communicate with one another. Further, the adoption of social media as a method of serving process takes advantage of the facility and efficiency of communicating through social media.
In the future, other methods that we now find absurd might be acceptable methods to serve process. For instance, in years ahead, plaintiffs might be able to serve process on Tiktok, or conduct personal service of process with a drone. Although these examples might not sound plausible in today’s day and age, society is changing fast, and it is unpredictable how service of process might continue to change.