In the last few months considerable interest has been stimulated by the apparent endorsement of sending legal notices of proceedings by Facebook, the social media service.Several County Court judgeshave purported to approve such a process, and a recent memo issued in June by the Citizens Advice Bureau has encouraged this view,certainly onewhich some lawyers working in bankruptcy law are keen to promote.
The basis of such speculation comes from a case in October 2014 when District Judge Lethem at the Tunbridge Wells County Court made an order allowing notification of a hearing regarding a debtor who was active on social media, at the request of a trustee in bankruptcy (Re A Debtor (No 0274 of 2010) 22 October 2014). There is anecdotal evidence that a judge at Hastings County Court did something similar in 2011. But there is scant evidence otherwise for such a process.
Certainly, to conclude that this now permits notification by social media is rather jumping the gun, and these examples provide no legal basis for service by Facebook by bankruptcy practitioners or anyone else.
The higher courts have not endorsed such a practice although in February 2011, one High Court claim was reportedly allowed to be served by an electronic attachment sent by Facebook.(1) However, this was not a judgment where the legality of the process was examined and it cannot be taken as any justification, particularly in light of a long standing rule of statutory interpretation which has been overlooked amidst the novelty of such reports.
Applying some very basic principles of law, there is no legal basis for the service by Facebook of any form of court proceedings in UK law.In particular, it needs to be remembered that the word or term ‘Facebook’ appears in no UK legislation between 2011-2015. It is clear that Parliament has not intended Facebook as a lawful means of serving documents or summonses.
Of courseFacebook does get mentioned in court cases – nearly a thousand of them since 2004– but in connection with other things. These have typically concerned advertisements placed upon it, or threats made via sites or as a source of evidence in criminal proceedings against the perpetrators of various crimes who have rashly posted pictures of themselves and their activities across social media.
It is a trite point,that just because something appears on Facebook or the internet does not make it correct, true or even legal, and as a social networking site limited to those who have signed up for it, Facebook does not provide the either the reach or universality of service which the service of legal proceedings is meant to reflect and enshrine.Whereas the post can get most places with long-established rules, social media is confined to the electronic connections of individuals and has not been deemed secure, safe or appropriate.In legal terms service on Facebook makes no more sense than making a claim that service can be effected by a television broadcast that someone might see.
More pertinently, statutory interpretation operates against such Facebook notifications having any validity. Parliament lays down in various statutes and regulations how legal proceedings and notices may be served, or treated as served. e.g. the Interpretation Act 1978, the Magistrates’ Courts Act 1980 and the County Court Act 1984. Parties following the rules are expected to abide by them and proceedings can be set aside when service is irregular or fails.
Principally, any statutory provision has to be read and interpreted according to its meaning on the day after it was made by Parliament. So when you read a statute and try to interpret it, you read it in terms of what was meant on the day after it was passed in the year in question.
The classic statement of this in English law is inSharpe v Wakefield  22 Q.B.D at 239: “Now what is the rule of construction to be applied? It is that the words of a statute must be construed as they would have been the day after the statute was passed, unless some subsequent statute has declared that some other statute is to be adopted or has altered the previous statute”. Parliament has stuck by this rule, periodically updating the rules of evidence in keeping with technological changes when making computer records admissible (e.g. the Civil Evidence Act 1968, the Evidence Act 1995).
Obviously, Facebook did not exist in 1986 and 1987 when the Insolvency Act and rules were made, nor the County Court Act 1984, or when rule 6.15 of the Civil Procedure Rules 1998 – cited at Tunbridge Wells Court – was drafted. Facebook was not launched until six years later in 2004, so there is no way social media can have been in the contemplation of Parliament at the relevant time, unless we consider our legislature to be gifted with clairvoyance.
On this basis summonsing people or serving them with civil proceedings and notification via Facebook has no basis in law
Alan Murdie, LL.B, Barrister
- AKO Capital LLP and Master Fund Ltd v TFS Derivatives and others, reportedly in February 2011 source CAB.