OTHER NEWS: Service of legal documents via social media: here’s how.

By now most people are probably aware of last year’s ground-breaking judgment by the KZN High Court allowing the service of legal documents on social media platforms such as Facebook. However, before litigants embark on widespread use (and abuse) of this new remedy, they should take heed of the following requirements:

• This remedy is only exercisable through a court application. In other words, service of a legal document over social media will only be valid after the party posting the notice has obtained a court order allowing it.

• One cannot initiate legal proceedings via social media. This method can only be used where a summons or other initiating document (such as a notice of motion) has already been served on a defendant using the normal prescribed method (which usually, but not always, involves the sheriff).

• The court has a discretion to allow service by social media. It does not have to grant such an order. Factors that will convince the court to do so include the following:

• It has to be shown that the normal means of service have proven ineffective and / or that the defendant is successfully evading the sheriff or the plaintiff – this includes providing the court with his last known whereabouts as well as proof that the applicant has made inquiries to trace the defendant, but that these have failed

• The court has to approve the content of the proposed notice

• The applicant has to show that there is a real likelihood that the notice will come to the defendant’s attention

• The defendant’s right to privacy must be not be unduly infringed (e.g. a notice may be sent as a private message but not posted on the defendant’s Facebook “wall”)

• The specific social media platform must allow for positive identification of the defendant (in this specific case the judge was satisfied that photographs of the defendant on his Facebook profile page sufficiently identified him). Platforms without this functionality may therefore be deemed insufficient.

• Each application will be heard on its own merits and the courts will not lightly grant an order of this nature without convincing evidence that it is necessary.

• Finally, it is worth bearing in mind that social media platforms, due to their public nature, should be used with great circumspection when referring to third parties. People have been successfully sued for defamation of character and dismissed from their jobs due to ill-considered posts about other people or their employers on social media sites.