Service of Process Via Social Media Comes to Texas
A look at rules, concerns, and what it means going forward.
By John G. Browning
Back in 2010, the Texas Bar Journal published my article
Served Without Ever Leaving the Computer: Service of Process Via
Social Media, in which I described the early but growing trend of
various foreign countries and jurisdictions here in the United States
recognizing the availability of using social networking platforms as a
form of substituted service. Since then, the Texas Family Code
(annotated) has cited this article approvingly, the Texas Legislature in
2013 considered a bill to expressly authorize service using social media
as an alternative means of service, and the number of American state and
federal courts to give their blessing to “service by Facebook” has
steadily grown. And while a number of Texas judges have informally
approved of such electronic notification as an acceptable form of
substituted service, in 2019, the Legislature finally made it official:
Service of process via social media is now a thing in Texas.
The text of SB 891 (an omnibus bill that amends multiple statutes)
amends Chapter 17 of the Texas Civil Practice and Remedies Code
specifically by adding Section 17.033, titled “Substituted Service
Through Social Media Presence.” It provides that, in cases that meet the
requirements for substituted service under the existing Texas Rules of
Civil Procedure, the court “may prescribe as a method of service an
electronic communication sent to the defendant through a social media
presence.” The new 17.033, which was signed into law by Gov. Greg Abbott
on June 10, 2019, also specifies that the Texas Supreme Court must adopt
rules to provide for such “substituted service of citation by an
electronic communication sent to a defendant through a social media
presence” no later than December 31, 2020. In addition to this rule
requirement, the new section will only apply to actions commenced “on or
after the effective date of the rules adopted by the Supreme Court of
Texas under that section.”
What might such rules involve for determining the appropriate
circumstances for serving someone via social media? For guidance, one
might look to the criteria discussed in an earlier legislative effort to
authorize substituted service through social networking platforms—2013’s
HB 1989. In HB 1989’s language, a court would have discretion to order
such service of process after determining several factors: (1) whether
the party to be served has an active social media profile on the site
selected for service; (2) whether the social media profile is actually
the profile of the party; (3) whether the party uses the social media
profile on a regular basis; and (4) whether the party could reasonably
be expected to receive the notice if the electronic communication is
sent to the party’s social media account.
These factors make sense, since they address some of the chief
concerns about service of process via social media. One of these
concerns is the authenticity of the defendant’s profile. Given the ease
with which fake profiles can be created, it won’t be enough to simply
point to a profile that has a picture of the defendant. The court will
need greater assurances of authenticity such as the age of the profile,
quantity and history of posts, instances of direct communication with
the subject through the social media account in question, etc. As one
New York federal court noted in rejecting a request for service of
process via social media, “anyone can make a Facebook profile using
real, fake, or incomplete information, and thus there is no way for the
Court to confirm whether the Facebook page belongs to the defendant to
be served.”1 Another understandable concern is the extent to
which the defendant regularly uses that social media profile and can
reasonably be expected to get notice of the lawsuit. While the issue of
the service reaching its intended recipient exists with other forms of
service, there are any number of ways an intended service of process via
Facebook might go astray. For example, what if a Facebook account was
left logged in on someone else’s computer?
Concerns such as these, along with some discomfort with technology
itself, were prominent when the Oklahoma Supreme Court addressed the
issue of service of process via Facebook in a 2014 family law
case.2 In re Adoption of K.P.M.A. involved the
termination of a father’s parental rights for a child born out of
wedlock and put up for adoption. The father appealed the termination of
his rights, arguing that he had received improper, inadequate notice
that he was the father. The child’s mother had sent him a Facebook
message “informing him that she was pregnant and plan[ned] to give the
child up for adoption.”3 The father testified that he didn’t
see the message until later and did not know how long it had been in his
inbox. Holding that notice provided via Facebook did not satisfy the due
process requirements of either the U.S. or Oklahoma constitutions, the
Oklahoma Supreme Court noted that the mother could have used a more
direct means of relaying the message. The court also observed that
Facebook “. . . is an unreliable method of communication if the
accountholder does not check it regularly or have it configured in such
a way as to provide notification of unread messages by some other
means.”4
But other jurisdictions have been more willing to embrace the concept
of service via social media, especially in family court cases or in
scenarios involving international defendants. In Baidoo v.
Blood-Dzraku, New York State Supreme Court Justice Matthew Cooper
permitted a divorce summons to be served solely by private message to
the spouse’s account.5 The court held that such service “is
the form of service that most comports with the constitutional standards
of due process” after the plaintiff established that the account
belonged to her husband, that he regularly logged on to the account, and
that she did not have his current email or street address (making
personal service impossible). Cooper went on to note that regarding the
idea of service via social media,
. . . a concept should not be rejected simply because it is novel or non-traditional. This is especially so where technology and the law intersect. In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology.6
Similarly, in another New York family court case, the court allowed a
father seeking modification of child support payments to serve the
mother via Facebook.7 After multiple efforts using
traditional means of service had failed, the court permitted service
through Facebook after the father showed the mother’s active use of her
Facebook account (by pointing out the mother’s “likes” of photos posted
by the father’s current wife). And in a New Jersey case of first
impression, the court allowed the plaintiff to serve an out-of-state
defendant through Facebook after traditional methods proved ineffective
and the plaintiff demonstrated that the defendant had been communicating
with her through his Facebook account.8
But when plaintiffs cannot establish that other avenues of service
have proven ineffective and that service via social media will be
reasonably calculated to apprise the defendant of the action against him
or her, courts will not hesitate to deny permission to use social media
as a form of substituted service. For example, one Pennsylvania court
denied an application to serve the defendant via his LinkedIn account
because the plaintiff failed to describe in sufficient detail the other
efforts at effecting service.9 And in Qaza v.
Alshalabi, the court denied an application to perfect service
through Facebook because the plaintiff couldn’t establish that the
defendant’s Facebook account was still being used by the defendant,
casting doubt on whether such service would have actually put the
defendant on notice of the lawsuit against him.10
Substituted service via social media—a concept already recognized in
eight countries and multiple state and federal courts here in the
U.S.—has finally and officially come to Texas. Given the ubiquity of
social media use and the advantages it offers over other alternatives
like service by publication (read any good legal notices lately?), it
may prove, in the proper circumstances, to be the only method to comply
with due process and reasonably apprise the defendant of the legal
proceedings against him. Courts might be hesitant at first, but as one
federal court observed about the “relatively novel concept” of service
by Facebook, “history teaches that, as technology advances and modes of
communication progress, courts must be open to considering requests to
authorize service via technological means of then-recent vintage, rather
than dismissing them out of hand as novel.”11 TBJ
This article, which was originally published in
Circuits, has been edited and reprinted with
permission.
JOHN G. BROWNING
is a partner in Passman &?Jones in Dallas, where he handles
commercial litigation, employment, health care, and personal injury
defense matters in state and federal courts. He is an award-winning
legal journalist for his syndicated column, “Legally Speaking,” and is
the author of the Social Media and Litigation Practice Guide
and a forthcoming casebook on social media and the law. He is an adjunct
professor at SMU Dedman School of Law.
