Recently, Texas became the first state in the nation to introduce legislation authorizing the notice of a lawsuit via a social media site. If passed, the proposed legislation would authorize a judge to permit a plaintiff to serve the defendant through social media if the defendant maintains a social media page, regularly accesses the account and “could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.” The legislation comes on the heels of a federal court allowing service of a foreign company via email and Facebook.
This evolution toward electronic notice makes sense. The primary concern in adopting any new manner of service is due process. The method must be reasonably calculated to apprise the defendant of the lawsuit and provide an opportunity to defend. Service by email has been allowed under certain circumstances for over ten years. The earliest decisions noted its wide adoption in business and its proven reliability. Social media is the next logical step. Given how much we are tied to email and social media via our smartphones and tablets, most people are far easier to reach virtually than physically, especially if they are trying to avoid being served in person.
One concern I have is that many company social media sites are managed by the marketing department or an outside firm, not the company executives. Although the sites may be “regularly accessed,” they may not be accessed by persons able to understand and escalate the notice to the legal department or someone authorized to handle it. Given the newness of the practice, it is unclear how the courts will deal with this, but best practice may be a disclaimer on the site and then ensuring that employees understand what to do if served.
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