This article was written by Lee Swales, a Lecturer at Varsity College and Consultant to V O’Connell Inc. Attorneys in Durban, South Africa. He authors the Social Media and Regulatory Law Blog.
Social media and technology have cast a wide net; service of legal process via non-traditional means, such as Facebook, is now permissible in many countries. Unusually, the United States is not currently one of these – primarily in the face of authentication fears. However, this is set to change with Texas currently reviewing Bill HB 1989 which aims to achieve ‘service of citation through a social media website’.
Interestingly, many United Nation member nations share remarkably similar legal frameworks, particularly insofar as electronic commerce is concerned with the 1996 UNCITRAL Model Law on Electronic Commerce. In order to hopefully provide further comparative insight, this post will review the South African position relating to social media service of legal process.
The use of Facebook and other social media platforms as a mechanism for service of legal process is not surprising considering the exponential growth of the Internet, and more recently, widespread use of various social media platforms across a variety of devices.
Essentially, an individual typically receives legal process in person, via registered post or in unusual situations, via technological means. The court system in South Africa is adversarial in nature (advocates and lawyers represent their clients’ interests) and the principle of audi alteram partem (let both sides be heard) is critical to civil procedure. In many ways, the legal philosophy and system is similar to that of the United States.
That being said, from a procedural perspective, personal service of process is always preferable to ensure integrity, fairness and due process. In practice, this can be tricky and costly when a defendant is purposefully evading the judicial system or his or her whereabouts are unknown. Enter social media and technology.
Although the South African judicial system was sluggish to adapt to the use of technology in comparison with the likes of the US, Australia and England, service of legal process via technology is an issue that both South Africa and foreign jurisdictions have only come to terms with recently.
So, can one use Facebook, Twitter, Google+, LinkedIn etc. to serve legal documents in South Africa? In a word, yes. There are a variety of factors that one would need to consider in each individual case, but as a general principal, it can be accepted that legal process may be served via social media if certain conditions are met.
Looking forward, one would think that we are moving to a space where service of legal process via electronic means, whether it be e-mail, social media or some other form of electronic communication will be common-place.
In fact, the use of social media for service of legal process is not all that novel. Facebook was deemed a competent method for service of legal process by the Australian courts in 2008. The United Kingdom allowed Twitter to be used in a 2009. Canada and New Zealand have followed suit.
Conversely, the relatively technology friendly country of the US is reluctant to accept social media for service of legal process due to fears around authenticity or the process being abused.
With this in mind, the Kwa-Zulu Natal High Court’s decision (per Steyn J) to allow service via social media in the matter of CMC Woodworking Machinery v Pieter Odendaal Kitchens is groundbreaking to say the least. It is, as far as I am aware, the first such decision in Africa – the law report is freely available and makes for an interesting read.
The decision is by no means an open door policy to allow any person to be “served” via Facebook in South Africa. However, it is a precedent that allows social media to be considered as an option going forward. This ruling comes off the back of the amendments regulating the conduct of proceedings in the High Court where Rule 4A, read with the Electronic Communications and Transactions Act, allows communication via “data messages”. Service of pleadings between attorneys can be legitimately achieved via e-mail and largely practitioners are adapting to an ever technology-infused environment. Cloud, e-mail, shared networks, online calendar and collaboration tools – the legal environment is moving swiftly with the times.
How did the court in CMC Woodworking Machinery decide that service via social media is permitted? It reasoned that Facebook has developed ‘to serve more than one purpose’ and that it is easily accessible to most persons across a variety of devices. This can be accepted as trite by now and the following further steps may need to be taken to promote legal certainty:
- Proving that all reasonable attempts have been made to contact the defendant;
- Proving that conventional service of process (e.g.: the use of a sheriff) has failed on at least two occasions;
- Proving that the user is currently on the relevant social media platform;
- Proving that the user’s personal information on the social media platform “matches” or is consistent with the personal information held by the plaintiff, for example; names, previous address details and location;
- Publishing a further notice in the relevant daily newspaper circulating in the relevant area;
- Requiring the social media platform to depose to an affidavit attesting that the message was sent.
The onus of proof rests with the Plaintiff, and if steps 1 through 5 are completed, one could argue that the onus will, in most instances, be satisfied. Step 6 could be used in situations where the court is not satisfied that the onus has been discharged. However, given the dynamic nature of social media and technology, the list above is not exhaustive and further steps may be required. It will very much depend on the circumstances, and in most matters pertaining to law, a case-by-case analysis will be required – It will be interesting to follow the developments of Bills such as HB 1989 to understand how various legislatures will tackle the subject.