22 Nov 2010

Police serve an Intervention Order via Facebook: Social media as the next frontier in legal process?

In an Australian first, Victoria Police has served an intervention order using Facebook. The offender had harassed his former partner on the social networking site two days after the expiration of an earlier intervention order.

Following the failure of traditional methods of service, the Victorian Police successfully applied to a magistrate for an order for substituted service using Facebook. All relevant information, including the order, extracts, an explanation and contact information, was typed into a private message and delivered to the account used to intimidate the woman. In addition, a constable was videotaped reading out the order as if he was serving the offender and posted the video online.

While the man in question made no indication that he had received the order, police were eventually able to make contact, at which time he confirmed that he had read the message but had not watched the video. He agreed to comply with the order and delete his Facebook profile.

This isn't the first time that Facebook has been used as part of the legal process here in Australia. In December 2008 Master Harper of the ACT Supreme Court allowed a lender to serve a default judgment on borrowers via Facebook, after conventional methods of contacting them had failed, a decision which is believed to have been a world-first. Courts in New Zealand and Canada have done likewise.

Despite these precedents, organisations should still be careful before they start poking, tweeting, or friending on social media as part of their legal strategy.

First, any sort of social media will be governed by the provider's terms of use, which you agree to before you use the service.

Secondly, your access to information might be controlled by the user on the social networking. In the ACT case, the borrowers' Facebook setting was "everyone", making their information accessible to anyone, including their lender.

Thirdly, even if your proposed use is covered, you also must comply with privacy laws. In the Victorian case, the legislation exempts the Victorian Police from complying with the relevant privacy principles if it believes, on reasonable grounds, that non-compliance is necessary in order to perform its community policing functions (section 13(d) of the Information Privacy Act 2000 (Vic)).

So, for example, if a private organisation asks its employees for their social networking information as a way to contact them in an emergency, it could only use the information for contacting them (unless that other use is specifically allowed by the National Privacy Principles).

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.