Aussie court OKs using Facebook for serving lien
Wednesday, December 17, 2008
CANBERRA, Australia -- The repo man wants to "poke" you on Facebook. The bill collector is writing on your wall.
After a court in Australia ruled a mortgage lender can use Facebook to break the news to a couple that they have lost their home, the global social networking websites are threatened with turning a little more anti-social.
Some people are concerned that such court-approved contact with their social networks such as Facebook could amount to a violation of privacy.
"I don't think people sign up to Facebook thinking it's going to be another avenue by which a government agency or indeed a debt collector can contact them," said Colin Jacobs, vice chairman of the technology advocacy group Electronic Frontiers Australia.
"If we expect that we'll only be contacted on an official basis through the phone or post or through a visitor, and now it's coming through a more personal social networking conduit, then I don't think many people will be happy with that," he added.
Facebook has become a popular online hangout, attracting more than 140 million users since it began in 2004. Users can "poke" friends -- an electronic tap on the shoulder. They also can affix messages to a friend's "wall" -- an area on the Facebook page.
Lawyers say they cannot recall a precedent for the Dec. 12 ruling in Canberra's local Australian Capital Territory Supreme Court that allowed lender MKM Capital to use Facebook to serve legal documents after weeks of failed attempts to contact borrowers Gordon Poyser and Carmel Corbo at their Canberra home and by e-mail.
Facebook spokesman Barry Schnitt praised the ruling.
"We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication," he said.
"The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," Schnitt added. The company said it believed this was the first time it has been used to serve a foreclosure notice.
Australian courts have given permission for people to be served via e-mail and text messages when it was not possible to serve them in person.
The lender's lawyer, Mark McCormack, said that by the time he got the documents approved by the court for transmission, Facebook profiles for the couple had disappeared. The page was apparently either closed or secured for privacy, following publicity about the court order.
"It's somewhat novel, however. We do see it as a valid method of bringing the matter to the attention of the defendant," McCormack said.
Despite the court approving the Internet contact on the basis of the lawyers' exhausted attempts to reach the couple, The Associated Press found Poyser, 62, on Tuesday at home at the contested address.
He declined to comment on the case, citing the couple's stress of losing their home of seven years. But he said he had privacy restrictions imposed on his Facebook page only because of the media attention.
"Because (otherwise) I'd get every man and his dog having a look," the retiree told the AP at his front door.
Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.
Sydney University of Technology law professor Michael Fraser said the court intrusion into a social website was inevitable and unprecedented.
"It does change the rules of the game because people thought of these as social sites; now they can be used to serve official court documents and it may change the way people establish a presence on the social networks and the way they use them," Fraser said.
The case shows "that Facebook is not a toy," said Josh Bernoff, author of "Groundswell," a best-seller on social media. "You have to look at this and recognize ... it's a communications channel used for everything."
He said it might be difficult to deliver a foreclosure notice electronically in the U.S., since it is not always possible to prove an e-mail has been received by the intended recipient.
But he said there is an "ongoing debate" over which types of electronic correspondence are considered legally binding. He noted, for instance, that e-mail traffic is often subpoenaed as part of court evidence. "You have to expect any communications in Facebook will be subject to this sort of question."
Amanda Lenhart, a senior research specialist at the Pew Internet Project, said the Australian case went beyond the generally accepted bounds of Facebook use. "There's a question of whether the users of Facebook envision it being used in this way."
She said a social network site is a well-accepted means of communication typically used by a network or circle of friends, not for commercial transactions.
Facebook itself has introduced touches that have made the site more than just the online equivalent of hanging out in a room with a group of buddies.
In 2006, the company angered many users by adding "news feeds" that automatically broadcast certain personal details. After Facebook began offering ways for users to control the feeds, the feature became far more popular. Last year, though, Facebook endured another revolt over "Beacon," which shared details about what its users were doing on other Web sites. Facebook responded to that outcry by introducing controls that let users change Beacon.