Service by Social Media

Recently, a New York City family court recently ruled that serving a defendant via Facebook was a valid form of service of process. The judge ruled that because the plaintiff tried all available means available to serve the defendant, the plaintiff could send a digital copy of the summons and complaint to the defendant’s Facebook account. With the growth and pervasiveness of social media, service by social media could one day become a codified and established form of service when personal service fails. In fact, Texas is currently looking to codify substitute service by social media allowing such service if the court finds that the defendant regularly accesses the social media page account” and that the “defendant could reasonably be expected to receive actual notice” if the communication is sent to the account. (Proposed Sec. 17.031).

Presently, Georgia law does not recognize alternative service by social media. Rather, Georgia follows the archaic substitute service by publication. The law states in pertinent part:

When the person on whom service is to be made … conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or the clerk of the court … the judge or clerk may grant an order that the service be made by the publication of summons…OCGA § 9–11–4(f)(1)(A).

Service by publication is effected by posting certain information in the newspaper. As is readily obvious from this scheme, “notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits” and is reserved for situations where the party can make a “a showing that reasonable diligence has been exercised in attempting to ascertain [the defendant’s] whereabouts. Pierce v. Pierce, 270 Ga. 416 (1999). Service by publication is evaluated on a case by case basis where the movant demonstrates that he/she has “exercised due diligence in pursuing every reasonably available channel of information.” Id.; Abba Gana v. Abba Gana, 251 Ga. 340, 343–344 (1983). If is often employed in the situation where the defendant is “dodging service.” Melton v. Johnson, 242 Ga. 400, 403–404, 249 S.E.2d 82 (1978) (where the defendant “willfully secrets himself in order to frustrate all reasonable efforts to effect personal service,” then the service by publication affords sufficient due process and confers personal jurisdiction over the defendant.

The bedrock of due process “requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Taylor v. Padgett, 300 Ga. App. 314 (2009). With the obvious inability to adequately provide ACTUAL notice of a lawsuit through service by publication, the Georgia legislature would be well served to follow Texas’ lead. It is likely that a statute closely mirroring Texas’s proposed law would easily pass constitutional muster in Georgia. If it is a prerequisite that the defendant is active on Facebook, it is not a large leap to believe that the defendant will receive ACTUAL notice of the lawsuit, a vast improvement over the outdated publication method. As the Supreme Court of the United States has said: “Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard.” Milliken v. Meyer, 311 U.S. 457 (1940).

A proper balance was struck between the procedural ideal that actual notice be given to all interested persons and the practical exigencies that inhibit the realization of that ideal.  Abba Gana v. Abba Gana, 251 Ga. 340, 343–344 (1983).

Williams v. Jackson, 273 Ga. App. 207, 208, 614 S.E.2d 828 (2005) (service by publication “does not require a showing that serviced has been attempted but only that the party to be served has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons”)

This court cannot lay down a sweeping rule applicable in all cases in which service by publication and by mail is made on a defendant who secrets himself to avoid the process server because due process requires “fair notice” Melton v. Johnson, 242 Ga. 400 (1978).