32164-rcm_2-2 Sheet No. 11 Side B
Your Facebook Statusâ€”â€œServedâ€?
Facebook page.48 The court declined to order service through Facebook, primarily because RIDFRQFHUQDERXWWKHSRVVLELOLW\RIDIDOVHVRFLDOQHWZRUNLQJSURÂżOH ,DPQRWVRVDWLVÂżHGLQOLJKWRIORRNLQJDWWKHÂ˛WKHXQFHUWDLQW\RI)DFHERRNSDJHVWKHIDFWVWKDW anyone can create an identity that could mimic the true personâ€™s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.49
32164-rcm_2-2 Sheet No. 11 Side B
Despite granting the application for substituted service as to sending a sealed copy of the claim to the defendantâ€™s last known postal address, Judge Ryrie clearly believed that the potential existence of a faked Facebook page undermined the â€œoffering a reasonable chance of successâ€? prong of the two-part test. In many ways, her distrust of the reliability of a social networking page echoes the early mistrust that many American courts have voiced regarding evidence from online sources.50 While such concerns might have made it more daunting for the next attorneys who sought service through Facebook, a few months later, in December 2008, the opportunity arose to re-examine the question. In MKM Capital v. Corbo, Australian couple Carmel Corbo and Gordon Poyser defaulted on a $150,000 mortgage.51 Following the default, law\HUVIRUWKHPRUWJDJHOHQGHU0.0&DSLWDOÂżOHGVXLWDQGREWDLQHGDGHIDXOWMXGJPHQWSHUmitting seizure of the property. However, the lenderâ€™s lawyers were stymied in their efforts to serve notice of the judgment on Corbo and Poysner using traditional methods of service. Nearly a dozen attempts were made, through personal service, mail and advertising in The Canberra Times.52 Hiring private investigators proved fruitless as well; the defendants were not at either their last known residential address or last known places of employment, and had changed phone numbers as well.53 As evasive as the defendants were, however, they underestimated the tech-savviness and creativity of the lenderâ€™s lawyers. Using the email address Corbo had provided during the loan application process, MKMâ€™s legal team was able to locate her Facebook page.54 Since Corbo and Poyser had â€œfriendedâ€? each other on the social networking site, and because neither defendant had opted to use Facebookâ€™s various privacy restrictions, the lawyers thus had access to both GHIHQGDQWVÂś)DFHERRNSURÂżOHVDQGZHUHDEOHWRFRPSDUHELRJUDSKLFDOGDWDIURPHDFKRI WKHSURÂżOHVELUWKGDWHVHPDLODGGUHVVHVOLVWVRIÂłIULHQGVÂ´HWF ZLWKLQIRUPDWLRQGHscribed on Corboâ€™s and Poyserâ€™s loan applications.55 Armed with this evidence, attorney Mark McCormack was able to satisfy both prongs of the Rule 116(1) two-prong test for substituted service and assuage any concerns that he indeed had the correct people and WKDWVHUYLFHYLD)DFHERRNZRXOGLQGHHGEHVXIÂżFLHQWQRWLFHWRWKHGHIHQGDQWV0DVWHU'Dvid Harper of the Australian Capital Territory Supreme Court approved MKMâ€™s request
48. ,G, transcript at 3. 49. ,G, transcript at 3-4. 50. For example, one federal judge derisively referred to â€œvoodoo information taken from the Internet,â€? a vehicle he regarded as â€œone large catalyst for rumor, innuendo, and misinformationâ€? on the way to concluding that â€œany evidence procured off the Internet is adequate for almost nothing.â€? St. Clair v. Johnnyâ€™s Oyster & Shrimp Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999). 51. MKM Capital Property Ltd. v. Corbo & Poyser (Dec. 12, 2008), No. SC 608 of 2008 (Austrl., ACT Sup. Ct.). 52. ,G 53. ,G 54. Rod McGuirk, Youâ€™ve Been Served â€Ś on Facebook, M SNBC .COM (Dec. 16, 2008), available at http:// www.msnbc.msn.com/id/28255716/from/ET/print/1/displaymode/1098. 55. BROW NING , supra note 45, at 31.
VOLUME 2, I SSUE 2
7/3/12 7:56 AM
This issue of the Journal covers Facebook service, Judgespeak and more.