Although appellate authority is - understandably - thin on the ground, the position that emerges from recent cases in New Zealand, the UK and Australia is that posting a message on a user’s Facebook page may be an acceptable method of substituted service provided evidence establishes that the page is that of the person to be served and the account is active and the posting is therefore likely to come to the user’s attention in a timely fashion.

In March 2009, in Axe Market Gardens Limited v Axe,  the New Zealand High Court ruled that substituted service could be made on a defendant overseas via Facebook as newspaper advertising could not be effectively targeted. Since then, New Zealand courts have continued to make orders providing for service by Facebook. 

In February 2012, the High Court of England and Wales for the first time allowed service on an individual defendant via Facebook. The Court allowed the service as the claimant established that the account belonged to the individual defendant to be served (colleagues from the related defendant company were Facebook friends) and was active (the defendant had recently added two friends).

The New South Wales Court of Appeal recently considered the appropriateness of this method of substituted service. 

Flo Rida v Mothership Music Pty Ltd

Mothership Music Pty Ltd (“Mothership”) is the organiser of the “Fat as Butter” festival in Newcastle.  It contracted Flo Rida to perform at the 2011 event as the headline event but the festival took place without Flo Rida’s appearance. 

Mothership learnt that that Flo Rida would be coming to Australia in April 2012 and began proceedings for breach of contract. It was unable to effect service on Flo Rida personally so applied to the District Court for an order for substituted service. The proceedings were subject to some media attention.

An employee of Mothership filed an affidavit in support of the application. The affidavit said that, after Mothership’s attempts at personal service of court documents were unsuccessful, she made attempts to serve Flo Rida by emailing the documents to two members of his management team. She had also followed a link on the official Flo Rida website to the Flo Rida Facebook page and posted notices on the Facebook wall alerting him to the documents. She said it was possible to send Flo Rida “private messages" via the Facebook page and noted that the publicity about the case and the difficulty Mothership was having in serving him might have brought the proceedings to Flo Rida’s attention. 

The District Court, referring to Axe Market Gardens and Australian cases in which it was ordered that documents could be served on defendants by notification on Facebook, made an order providing for substituted service by  email and private message to Flo Rida via the Flo Rida Facebook page. The order was made the day before Flo Rida was likely to be returning to the United States. He did not make an appearance and judgment was entered against him for AUD 380,400.60.

Flo Rida then appeared conditionally to challenge the District Court’s jurisdiction and appeal the judgment. He argued that the order for substituted service should not have been made. On the question of jurisdiction, the New South Wales Court of Appeal noted that the District Court is an inferior court of limited jurisdiction and, for it to have jurisdiction, service must be effected within Australia. It considered the District Court was wrong to order substituted service in the absence of evidence that the documents would come to the attention of Flo Rida while he was in Australia. It considered it would be “a subversion of the policy underlying [the] provisions to permit avoidance by the simple device of a substituted service order.” 

Although the Court of Appeal overturned the decision of the District Court on the jurisdictional point, it did not otherwise doubt the ability of a court to order that service be effected via Facebook. The Court of Appeal’s comments, albeit obiter dicta, suggest that posting on a recipient’s Facebook page is a permissible means of substituted service if evidence establishes that the Facebook page is in fact that of the person to be served and the posting is likely to come to that person’s attention – at the place he is to be served - in a timely fashion.