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In a recent judgment, the Australian Supreme Court ordered that notice of a default judgment granted in the absence of the defendants could be sent to the defendants by sending a message to the Facebook pages of the defendants.
Lawyers convinced the court that the Facebook profiles identified were those of the defendants because the dates of birth and email addresses were the same as those of the defendants, and the defendants were on one another’s “friends lists”.
Australian courts have also allowed service by email and by text message to a mobile phone.
In South Africa there is the potential for similar orders being granted in the context of substituted service. According to the court rules, substituted service is ordered when the defendant is believed to be in the Republic but one of the normal forms of service set out in the rules cannot be effected, or when personal service is required and cannot be affected. The court may order any manner of service if it can be shown that there is some reasonable likelihood that the form of service suggested will come to the knowledge of the defendant. A court in South Africa may authorise service by way of e-mail or other electronic means.
The Electronic Communications and Transactions Act, 2002 is also relevant. This Act applies in respect of any electronic transaction or data message. Its objects include enabling and facilitating electronic communications and transactions in the public interest, and promoting legal certainty and confidence in respect of electronic communications and transactions. This Act has its origins in an international instrument, and countries such as Australia, Canada, United States of America and India all have similar sending and receiving provisions andsimilarly defined key terms. In South Africa electronic transactions policy must be formulated with due regard to international best practice as well as the existing laws and their administration in the Republic.
Considering that Facebook has attracted over 140 million users worldwide since its inception in 2004, the possibility of service by Facebook is worth bearing in mind as we create and manage our digital identities.
Lawyers convinced the court that the Facebook profiles identified were those of the defendants because the dates of birth and email addresses were the same as those of the defendants, and the defendants were on one another’s “friends lists”.
Australian courts have also allowed service by email and by text message to a mobile phone.
In South Africa there is the potential for similar orders being granted in the context of substituted service. According to the court rules, substituted service is ordered when the defendant is believed to be in the Republic but one of the normal forms of service set out in the rules cannot be effected, or when personal service is required and cannot be affected. The court may order any manner of service if it can be shown that there is some reasonable likelihood that the form of service suggested will come to the knowledge of the defendant. A court in South Africa may authorise service by way of e-mail or other electronic means.
The Electronic Communications and Transactions Act, 2002 is also relevant. This Act applies in respect of any electronic transaction or data message. Its objects include enabling and facilitating electronic communications and transactions in the public interest, and promoting legal certainty and confidence in respect of electronic communications and transactions. This Act has its origins in an international instrument, and countries such as Australia, Canada, United States of America and India all have similar sending and receiving provisions andsimilarly defined key terms. In South Africa electronic transactions policy must be formulated with due regard to international best practice as well as the existing laws and their administration in the Republic.
Considering that Facebook has attracted over 140 million users worldwide since its inception in 2004, the possibility of service by Facebook is worth bearing in mind as we create and manage our digital identities.
Please send all mail there where it is likely to receive the relevant attention.
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