In December 2008 an Australian court allowed an attorney to serve legal papers to a couple via Facebook. The case revolved around missed payments on a loan and the move was only allowed after the lawyer had been unable to contact the couple via more traditional means.
Almost a year later, in a case involving an alleged impersonator on Twitter, a UK court allowed legal papers to be served via a tweet, once again after all other means of contacting the person had been exhausted.
It is clear that social networking has changed the way we communicate with one another and that change is filtering down into how we pass around legal documents.
Though email is now a relatively accepted way to send a legal document, though not necessarily to formally serve one due to the lack of reliability, will Facebook and Twitter reach a similar level of acceptance? It seems unlikely to me, but I am eager to hear other’s viewpoints on this.
So would you send a cease and desist notice via Facebook or Twitter? My (brief) thoughts are below.
Personally, I feel the method of delivering any warnings or other related letters should be appropriate for the case. If someone were infringing copyrights on Twitter or Facebook, I would at least consider using their built-in messaging systems to deliver a notice, albeit with my tracking to determine if the note is read.
But even in those cases I would view it as a last resort. Though email may not be much more reliable (perhaps even less reliable) it certainly is treated with a higher level of respect and seriousness. Though I’ve conducted business, including negotiating deals for writing contracts, on both Facebook and Twitter, most business takes place over email, phone and fax, even today.
Part of this is for paper trail reasons. Facebook and Twitter are centralized services where there is one copy of every correspondence saved. With email, you have your copy of an email and they have theirs, likewise for postal mail. This lack of an independent paper trail makes me nervous about sending anything that could become involved in a legal dispute as the existing copy can be altered or destroyed on accident or maliciously by the intermediary.
I would not use Twitter or Facebook to handle copyright infringement matters unless the services were relevant to the infringement and there were no other practical alternatives. However, I also recognize that I may be showing my age a bit so I’m eager to see what others think, including those who are more comfortable with Facebook and Twitter as a communications means.
To date though, I have not had any reason to use either service to deliver a cease and deist letter. If email, postal mail, fax and courier are all not possible, I’ve never had Facebook or Twitter as a viable alternative.
In short, I can see little reason to consider using these methods for sending anything intended to be taken as seriously as a cease and desist, but I fear that I may be living behind the times.
I’m eager to hear what you think in this issue. Would you send a DMCA notice via Twitter or Facebook? If so, how would you do it to ensure proper delivery and that you had the required records on your end?
Feel free to leave a comment below or drop me a line with your thoughts.