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Does the law need to catch up with social media?

All of us know that Americans are spending more time with social networking.  Those aged 18 to 64 who use social networks say they spend an average of 3.2 hours per day doing so, according to new research released by Ipsos Open Thinking Exchange (OTX). The law governing providing notice of a lawsuit to individuals and/or businesses has not grasped this well-known fact.

Rule 4 of the Indiana Rules of Civil Procedure governs service of process.  The party seeking service of process designates the manner in which the summons will be served, which is typically through mailing.  When mailing to the last known address is ignored and the individual cannot be found, service of process by publication may be permitted.  Rule 4.13 in Indiana designates that service of summons by publication shall be in a newspaper authorized by law to publish notices and published in the county where the complaint or action is filed or where the property or issue is located.  If there is no newspaper in that county, then the closest adjoining county newspaper is to be used.

Does this law need to be amended to recognize that individuals are spending more time on social media than reading the newspaper or going to the post office to pick up their mail?  It is reported that courts in Australia, New Zealand and the United Kingdom have permitted service via social media when traditional means of service have failed.  So far U.S. courts have been more reluctant.

In 2013, Texas House Bill 1989 was introduced by an elected lawmaker. The short bill provided that a Texas court may permit as a method of service “an electronic communication sent to the defendant through a social media website,” provided that the court finds that:

“1) The defendant maintains a social media page on the website;
2) The profile on the social media page is the profile of the defendant;
3) The defendant regularly accesses the social media page account; and
4) The defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.”

Since the whole purpose behind the rules governing service of process and summons is to notify a defendant that they have been sued, providing notice where people are spending all their time may make more sense than utilizing the U.S. Mail and/or the local newspaper.

The Ipsos research includes interesting demographic gaps suggesting that those who may be harder to serve civil litigation process may be greater users of social networking.  The reported research indicates:

  • Social networkers with low household income spending more time than those with high household income (3.7 hours versus 3.1 hours);
  • Those with low education levels spending more time than those with high education levels (3.5 versus 3); and
  • Unemployed social networkers spending 3.5 hours a day on social media versus 3 hours for the employed.

The explanation for these demographic gaps may simply be a demonstration of those with more time to spend on social networking.  For purposes of service of process, it may be a matter of finding a more effective method to notify defendants that they have been sued when they seek to hide from routine notice methods.

In Joe Hand Promotions v. Shepard, 4:12-cv-1728 S.N.L.J. (E.D.Miss. August 12, 2013), the plaintiff showed it had attempted all standard means of service of process.  The plaintiff further demonstrated that the defendants in that action had an active Facebook account and requested to serve them by attaching a copy of the summons and complaint to a Facebook message.  The court concluded that Federal Rule of Civil Procedure 4 may allow for electronic service on foreign defendants in some circumstances but as it relates to domestic defendants, electronic service is not permitted unless allowed by the state where the action is brought.

Given the ever-expanding usage of social networking and the public policy interest of notifying defendants that they have been sued, it is time for Indiana to reexamine its Rules regarding service of process and make provisions for serving defendants via Facebook or other social media.

For more information about this or any related legal matter, please contact KDDK attorney Brian P. Williams at (812) 423-3183 or BWilliams@KDDK.com, or contact any member of the KDDK Litigation and Trial Services Practice Team.

About the Author

Brian Williams

Brian P. Williams, a Co-Managing Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the firm’s Economic Development, Estate Planning and Probate Administration, Litigation and Trial Services, and Real Estate Law practice teams; and has served clients in industries including agriculture, construction, manufacturing, and education for more than 30 years.  He especially excels  when advocating economic development projects and site locations. Honed from service as a private practitioner, federal magistrate, industrial foundation officer, federal law clerk, and civic leader, Brian’s analytical skills empower clients to more swiftly reach durable solutions.