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Serving legal proceedings by Facebook? Nah…

There has been considerable interest in the apparent endorsement of sending legal notices of proceedings by Facebook. Several County Court judges have supposedly endorsed this process, and a Citizens Advice Bureau memo issued in June has encouraged this view, one which some lawyers working in bankruptcy law have been keen to promote.

In October 2014, District Judge Lethem at the Tunbridge Wells County Court made an order allowing notification of a hearing regarding a debtor who was active on social media, at the request of a trustee in bankruptcy (Re A Debtor (No 0274 of 2010) 22 October 2014). There is anecdotal evidence that a judge at Hastings County Court did something similar in 2011, but scant evidence otherwise. Certainly, to conclude that this now permits notification by social media is rather jumping the gun, and these examples provide no legal basis for service by Facebook by bankruptcy practitioners or anyone else.

The higher courts have not endorsed such a practice, though in February 2011, one High Court claim was reportedly allowed to be served by an electronic attachment sent by Facebook. [1] However, this was not a judgment where the legality of the process was examined and it cannot be taken as any justification, particularly in light of a longstanding rule of statutory interpretation that has been overlooked amidst the novelty of such reports.

Applying some very basic principles of law, there is no legal basis for the service by Facebook of any form of court proceedings in UK law. The word or term ‘Facebook’ appears in no UK legislation in 2011–2015, and it is clear that Parliament has not intended Facebook as a lawful means of serving documents or summonses.

Of course, Facebook does get mentioned in court cases (nearly 1,000 of them since 2004), but in connection with other things. These have, typically, concerned advertisements placed upon it, or threats made via sites or as a source of evidence in criminal proceedings against the perpetrators of various crimes who have rashly posted pictures of themselves and their activities across social media.

It is a trite point, that just because something appears on Facebook or the Internet does not make it correct, true or even legal, and as a social networking site limited to those who have signed up for it, Facebook provides neither the reach nor the universality of service which the service of legal proceedings is meant to reflect and enshrine. Whereas the post can get most places with long-established rules, social media is confined to the electronic connections of individuals and has not been deemed secure, safe or appropriate. In legal terms, service on Facebook makes no more sense than making a claim that service can be effected by a television broadcast that someone may see.

More pertinently, statutory interpretation operates against such Facebook notifications having any validity. Parliament lays down in statutes and regulations served (for instance, the Interpretation Act 1978, the Magistrates’ Courts Act 1980 and the County Court Act 1984) how legal proceedings and notices may be served, or treated as served. Parties following the rules are expected to abide by them and proceedings can be set aside when service is irregular or fails.

Principally, any statutory provision has to be read and interpreted according to its meaning on the day after it was made by Parliament. So when you read a statute and try to interpret it, you read it in terms of what was meant on the day after it was passed in the year in question.

The classic statement of this in English law is in Sharpe v Wakefield [1888] 22 QBD at 239: “Now what is the rule of construction to be applied? It is that the words of a statute must be construed as they would have been the day after the statute was passed, unless some subsequent statute has declared that some other statute is to be adopted or has altered the previous statute”. Parliament has stuck by this rule, periodically updating the rules of evidence in keeping with technological changes when making computer records admissible (e.g., the Civil Evidence Act 1968 and the Evidence Act 1995).

Obviously, Facebook did not exist in 1986 and 1987 when the Insolvency Act and rules were made, nor when the County Court Act 1984 or rule 6.15 of the Civil Procedure Rules 1998 (cited at Tunbridge Wells Court) were drafted. Facebook was not launched until six years later in 2004, so there is no way social media can have been in the contemplation of Parliament at the relevant time, unless we consider our legislature to be gifted with clairvoyance.

On this basis, summonsing people or serving them with civil proceedings and notification via Facebook has no basis in law.

Alan Murdie, LLB, Barrister

Notes

1  AKO Capital LLP and Master Fund Ltd v TFS Derivatives and others, reportedly in February 2011 source CAB. [Back]

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Serving legal proceedings by Facebook? Nah…