Service via Social Media – Wakim v Criniti [2016] NSWSC 1723

Posted on Dec 12, 2016 by Dean Frith   |   Categories: Litigation & Dispute Resolution

Social media sites are becoming more and more part of our everyday lives and society, including our legal system, as a recent New South Wales Supreme Court decision shows.

The case of Wakim v Criniti [2016] NSWSC 1723 demonstrates that in cases where a plaintiff is unable to physically locate a defendant for the service of legal documents, it can be sufficient to execute service via social media.

The subject of the proceeding was a defamation claim relating to posts on the defendant’s Linked In page and Facebook. In attempting to serve the statement of claim, the plaintiff, and those assisting the plaintiff, had taken ‘thorough and extensive steps to locate the defendant physically’ but had been unsuccessful. The Supreme Court was satisfied that the document could not practicably be served on the defendant in person.

There was evidence that the defendant was recently active on social media – specifically Facebook and Instagram. The plaintiff therefore sought an order from the court allowing substituted service. The plaintiff established that there was a mechanism that allowed the plaintiff to send the statement of claim via the defendant’s Linked In profile.

The case raises some questions, such as: How recently and frequently active does a social media profile need to be for service to be appropriate? How easily accessible should the message be – presumably it would need to go to a place that people would regularly check or which sends notifications? It is also common for people to have different settings enabled on their social media applications, which means that some people receive notifications while others do not – how would this affect the appropriateness of service via this means?

These questions aside, it is clear that a defendant cannot hide behind social media to avoid service. At a time when our lives and relationships often revolve around electronic communication, the courts have acknowledged that legal procedure must be updated accordingly.