Served via social media — the new ‘face’ of litigation
Law You Can Use
Q: I was “served” my divorce papers through Facebook. Is that legal?
A: In some jurisdictions outside Ohio (Utah, for example), social media — and in particular, Facebook — is now being used to provide official legal notice of a court action (called “service of process”) to individuals and sometimes even to businesses. Currently in Ohio, however, social media is not listed in the Ohio Rules of Civil Procedure as one of the ways service can be “perfected” or completed. This means that, even though no Ohio law or court appears to have specifically outlawed it, any attempt to serve process via social media may provoke a number of legal arguments about whether or not the case against you may be dismissed due to improper service of process.
In Ohio, a court usually gives notice by delivering a set of court documents (sometimes called “process”) that usually includes a complaint (saying why you are being sued) and a summons (asking you to respond and/or come to court). Traditionally, “process” has been served by: a) personal service — physically handing the documentation to the person; b) service to a party’s residence or place of business by mail; or, if the party cannot be located, c) service by publication in a newspaper of general circulation. However, serving process through newspaper publication when a party cannot be located might no longer be as effective as sending out a notice through social media such as Facebook.
Q: What happens if someone doesn’t receive court documents through “process”?
A: If a person or business that started the lawsuit cannot obtain proper service of process, the other party will not receive the necessary “complaint” and the lawsuit cannot move forward. In some instances, the court may even dismiss the case. On the other hand, if a person or business is “served” but fails to respond in a timely manner, the court may enter a “judgment” against that person or business.
Q: Why is service by publication a “last resort” for tracking down evasive defendants?
A: Realistically, a defendant is not likely to receive notice of the lawsuit through publication, because it is the rare individual who takes time to scour newspapers for fine-print-type legal notices.
Q: What do other states say about serving process through social media?
A: While Ohio courts and the legislature have not yet weighed in on this issue, other states are starting to recognize social media as a viable alternative for service of process. In Utah, for example, when traditional methods of service are not viable options, the court can authorize service by means of social media even though the state’s rules of civil procedure do not specifically address social media. In Texas, pending legislation would allow courts to prescribe alternate service via social media if certain requirements are met.
Q: If I am involved in a case originating in a state that allows process to be served via social media (or if Ohio allows this in the future), what should I consider before using social media for this purpose?
A: Serving process through social media might be an attractive alternative for you or your business to use when other methods such as personal service are not viable or are too costly. However, you should know that a wary and cautious individual who wants to avoid service through social media could easily adjust his or her privacy settings and limit identifying information, and service through social media would not be a viable alternative.
You should also be aware of the possibility that you might actually serve process on the wrong person, because it is not difficult to imitate or even steal a person’s online identity. Even so, the potential benefit of locating and serving process on the party so you or your business can move on with litigation may outweigh these pitfalls.
Remember though, that in Ohio, you should still use the traditional methods of service unless and until the social media option becomes available.
This column was provided by the Ohio State Bar Association (OSBA) and prepared by Sara Ravas Cooper, an attorney in the Cleveland office of Walter Haverfield. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, the OSBA urges readers to seek advice from an attorney.
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