Could Social Media be used for the Service of Process?

With adversity, innovation berths alternative ways for everyone to adapt and the pandemic over coronavirus has certainly called for changes in just about everything we do.  The legal process is no different.  We have already seen legal disputes taking place via Zoom or other telecommute avenues.  Mediation and even a divorce has taken place while parties, Judges and Attorneys are actively participating in the same case miles apart.

For years, attorneys have been asking to be able to have the ability to “Serve” electronically which would become a much more efficient way of reaching people.  A summons is a legal document notifying you or your required appearance in a court of law. Summons notify an individual of a civil case filed against them, or their need to defend themselves in a court of law or hearing.  Summons are typically served by a process server to ensure that it is served accurately, legally, and within your state's rules and regulations as it is required to officially notify an individual of a summons. If a person is not properly served a summons, it may be thrown out in a court of law.

The Texas Legislature has finally made it official where a Service of process can be executed via social media.  The text of SB 891 (an omnibus bill that amends multiple statutes) amends Chapter 17 of the Texas Civil Practice and Remedies Code specifically by adding Section 17.033, titled “Substituted Service through Social Media Presence.” It provides that, in cases that meet the requirements for substituted service under the existing Texas Rules of Civil Procedure, the court “may prescribe as a method of service an electronic communication sent to the defendant through a social media presence.” The new 17.033, which was signed into law by Gov. Greg Abbott on June 10, 2019, also specifies that the Texas Supreme Court must adopt rules to provide for such “substituted service of citation by an electronic communication sent to a defendant through a social media presence” no later than December 31, 2020. In addition to this rule requirement, the new section will only apply to actions commenced “on or after the effective date of the rules adopted by the Supreme Court of Texas under that section.”

However, for this to occur, several things must be understood before a Service of Process can be accurately executed.  First, it must be determine whether the party to be served has an active social media profile on the site selected for service.  Second, the social media profile needs to be actually the profile of the party.  Next, it will need to be determined if the party uses the social media profile on a regular basis and finally, the party needs to be reasonably be expected to receive the notice if the electronic communication is sent to the party’s social media account.

Given the ease with which fake profiles can be created, it won’t be enough to simply point to a profile that has a picture of the defendant. The court will need greater assurances of authenticity such as the age of the profile, quantity and history of posts, instances of direct communication with the subject through the social media account in question.  Another understandable concern is the extent to which the defendant regularly uses that social media profile and can reasonably be expected to get notice of the lawsuit. While the issue of the service reaching its intended recipient exists with other forms of service, there are any number of ways an intended service of process via Facebook might go astray. For example, what if a Facebook account was left logged in on someone else’s computer?

As new practices become the norm, having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.