29 Aug 2013

Court can't handle me: Flo Rida finds the flaw in Facebook service

by Ian Bloemendal

While it doesn't kill the use of social media for service, the Flo Rida decision does mean that courts will require more background information, which might be difficult to obtain.

Flo Rida is a rapper / Meant to play at Fat As Butter / Got sued when he didn't show / Then the Appeal Court said "hell no!"

There's a reason we're not rappers – but if lawyers aren't careful with the Facebook generation, we still might face the music. Although the courts have begun to signal approval of social media as a way to serve other parties in litigation, the decision in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 delivers an important warning note for lawyers like us and our clients, as it gives clear guidance on how to use social media when other ways of contacting litigants fail.

Flo Rida doesn't play Fat As Butter

American rapper Flo Rida agreed to be the headline act at the Fat As Butter music festival in Newcastle in late 2011. He didn't appear.

He did, however, make it to Australia in April 2012, at least according to newspaper reports, so the festival organiser Mothership Music decided to sue him and try to serve him between radio gigs while he was in Australia. It filed its Statement of Claim in the NSW District Court and got an order freezing Flo Rida's Australian assets up to a value of $80,000. A process server was sent to serve Flo Rida but couldn't get near him.

Mothership Music then sought and gained an order for substituted service. This involved serving the documents by email and by going to Flo Rida's official website www.officialflo.com and using the link on it to a Facebook page to post a notice in specified terms to inform him of the order for substituted service and the time for filing a defence. He did not make an appearance, and judgment was entered against him for $380,400.60 before interest.

Flo Rida then appeared conditionally so he could challenge the District Court's jurisdiction and appeal the judgment, arguing that the order for substituted service should not have been made.

Just because it's an official Flo Rida Facebook page doesn't mean he manages it or reads it

The NSW Court of Appeal allowed Flo Rida's appeal for the following four reasons:

  • the District Court is an inferior court that requires a sufficient territorial connection in order to exercise jurisdiction;
  • it's not good enough that Flo Rida was in the country when the proceedings were filed (although not even that was proved);
  • jurisdiction depends on due service, so if Flo Rida had been shown to have left Australia before the order was made, he could not be personally served "in the manner provided by law" and it would not be a proper use of the power conferred by UCPR 10.14 to do order substituted service; and
  • even if the Court had jurisdiction and substituted service were available, the evidence did not establish, other than by mere assertion, that the Facebook page was in fact that of Flo Rida and did not prove that a posting on it was likely to come to his attention in a timely fashion while he was in Australia. ( In the absence of that evidence, "the effect of the order was tantamount to ordering substituted service on a defendant who was overseas and not lawfully able to be personally served overseas" – and therefore not permitted).

Lessons for using social media to serve the other party

The first known use of social media to serve a party to litigation is believed to have been in the Australian Capital Territory in 2008 (a case involving default judgment), but there have been few cases in the last five years, and none at appellate level, so this case is useful both for what it does and doesn't say.

While it doesn't kill the use of social media for service, the Flo Rida decision does mean that courts will require more background information, which might be difficult to obtain.

First, litigants will need to give the court some evidence that the social media platform is actually connected with the other party. In this case, the mere fact that Flo Rida's official website indicated this was his Facebook page was not enough. What would be enough is a hard question to answer. Twitter's "verified account" icon might be enough for Twitter service, but other social media providers won't necessarily confirm or deny the account owner's identity. And of course your access to information on that page will be controlled by the account owner.

Secondly, even if the account is owned by the other party, you will still have to show some evidence that a message on it is likely to come to the account owner's attention. (And if they are about to depart Australia, a judge will need enough evidence to give sufficient confidence that notwithstanding the proximity of the other party's departure, the making of the order is nevertheless likely to come to the person's attention while they are still in Australia). This might be done by showing a pattern of activity on the account.

Even if litigants mount the first two hurdles, they will still need to remember any sort of social media will be governed by the provider's terms of use, which you agree to before you use the service, so you must check you can use it for service, and you also must comply with privacy laws and any other applicable laws.

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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.