The relationship between social networks and law is very controversial. If, on one hand, we are now accustomed to consider Social Networks as enemies of privacy, on the other hand the lack of privacy together with the users’ lack of attention towards prudent rules of behavior (sometimes one thinks that behind an avatar everything is allowed) is a factor that is playing a major role in court trials, for instance (but not only) when parties must gather evidence during matrimonial disputes.
A “cheerful” behavior in social networks is often used to demonstrate infidelity: divorce lawyers are well aware of this, and the practice of creating fake profiles and “probe” the behavior of the adverse party involved in the dispute with friendship requests is now a common established practice.
This is useful for the collection of evidence (sometimes there is not even need to interact directly since some users are so stupid to write private messages in the wall). This strategy leverages partly the peculiar concept of privacy of social networks, partly the naivety and superficiality of users and, although questionable from the ethical point of view, is permitted in several countries including Italy. In the so called “Belpaese” the Law prohibits to gather evidence entering abusively in the partner profile, but in the mean time allows to gather evidence using fake profiles with no connection with real world (or also friend profiles), using them to probe the partner’s fidelity (the successful gathering of an evidence is a real trouble for the guilty since there is a sentence of the supreme court entitled to quash a judgement – 9287/1997 – according to which the virtual infidelity causes the charge of separation).
Besides this point of contact, to which (un)fortunately we are getting more and more familiar with (Facebook is the top cause of relationship trouble), there is also another (controversial) important point of convergence between social networks and law, brilliantly described in this Bllomberg article: Facebook is being used as Tool to Serve Court Papers.
It all began two years ago in Australia: when a judge in Canberra required lawyers to serve a foreclosure notice to debtors at their home address, a secondary address, as well as via Facebook, on behalf of the creditor. Since then the practice of online legal service is spreading as a means for courts to keep their dockets moving and courts in New Zealand, Canada and the U.K. have adopted the Australian example to avoid having cases stall when people can’t be located and served in person. As a consequence U.S. Lawyers said the U.S. may not be far behind in using the world’s most popular social-networking service for the same purposes.
This is clearly another field in which social networks are changing the rules: the opportunity to serve the court papers by mean of social networks not only recognizes the legal value of a digital (social) identity, but also identifies the social network (Facebook in that circumstance but the practice is applicable to Twitter as well) as a reliable, secure and private communication medium.
Nevertheless there are still many concerns that probably need to be addressed more in deep.
First of all (guess what?) privacy! Even if many countries will not recognize this role to Facebook, because of the well-known privacy issues, privacy advocates claim that serving court notices by mail or in person often already provokes privacy complaints, and using Facebook doesn’t add any new concern.
The landscape is completely different if we analyze the question from the reputation perspective (reputation of the receiver, or better of her social profile), which is probably the main concern. With regard to Social Networks I already expressed my doubts on social reputation and the dangers hidden behind fakes identities. These aspects are more relevant than ever as far as the delivery of a legal document is concerned: in order to serve notices via Social Networks the sender must clearly trust the profile, and make sure she is really the person the notice is addressed to. Moreover the sender must be able to prove that the receiver’s profile is checked often enough to ensure it’s a reliable path of notification (probably in case the other traditional media failed to achieve the result)
Although many debtors or other kinds of defendants tend to hide their real o social identities, just to avoid the notices, the social delivery should be done without violating ethics codes that would prevent lawyers from “friending” the target in disguise to overcome privacy settings, even if we have seen that several countries (including Italy) permit the usage of such unethical methods to gather evidence.
In particular this aspect could not be a problem in Italy, because my country allows to “friend” a target in disguise, but also because a notice is successfully served if it has been sent using all the prescribed manners, and this is indipendent if it has been read by the receiver or not. In this case the unawareness is considered a negligence for the receiver.
Why should the lawyers and courts use social networks for serving notices? Give a look to the number of users on Facebook or the average time spent in social networks to have an answer. Moreover consider the fact that there are many cases in which defendants, rather then receiving the notices, prefer to be not available at their real addresses or also to escape abroad, possibly in countries with no agreement for serving notices from the original country. In all those cases, it may take up to six months to deliver notes (at least in Italy) with the consequent stall of the legal prosecution.
Fortunately often the defendants escape from their real world but are not able to escape from their virtual world, the social networks…
- Facebook Used by Courts to Find Those Who ‘Exist Only Online’ (businessweek.com)
- Courts use Facebook and Twitter to reach those who exist only online (textually.org)
- Can Legal Papers Be Served via Facebook? (socialtimes.com)