What role will social media play in the future of law?
Following a recent court ruling that a woman could serve divorce papers to her husband via Facebook, we heard from Jacqui Kempton, associate professor of family and divorce law at ULaw’s Bloomsbury campus.
The case was Baidoo v Blood-Dzraku, decided in the Supreme Court, New York County on 27 March 2015. The wife in the case was able to satisfy the judge that she had explored every possible avenue, but was quite simply unable to discover her husband’s whereabouts or his address. Therefore, she could not serve the divorce papers via the usual method of service (which in New York County is by ’personal delivery’ to the Defendant) or by the other methods of service prescribed under legislation. The wife did know that her husband was using a Facebook account and she asked the judge to direct that the divorce papers could be served via that account.
The judge granted permission for the wife’s attorney to serve the divorce papers using a private message through Facebook.
The decision was not surprising in terms of its reference to social media. Although the use of social media as a means of service might be described as unorthodox, it was not without precedent. The judge was able to point to other cases in which the use of social media had been requested and, in some cases, permitted. The novel legal point was that in the other cases the courts had been prepared to use social media only as a backup to other methods of service being attempted, whereas in the Baidoo case the judge was prepared to allow Facebook as the only method of service.
Perhaps the most notable feature of the case was the judge’s determination that the law should move with the times, however ‘novel’ others might consider that approach to be. On the facts of the case, the wife did have another means of service at her disposal – a means which was in fact prescribed by the existing legislation and used, as the judge put it, ‘since colonial times’. This was service ‘by publication’, for example, in a newspaper. In some ways this could be viewed as the judge’s ‘easy’ option, and he certainly would not have attracted the attention of the world’s press if he had taken it. However, the judge was at pains to point out that the divorce is a hugely important matter and that the court’s primary responsibility was to ensure that the husband knew about the case and had his chance to participate in it.
The judge rejected ‘by publication’ as a method of service which, in this day and age, could almost be guaranteed not to bring the case to the husband’s attention. Instead he took the modern approach which, while unconventional, was most likely to meet the needs of justice.
Almost certainly yes, as a method of service of last resort. We already have examples of non-family cases in this country where the courts have allowed papers to be served via Facebook and Twitter.
English divorce procedure is not dissimilar to that applied in the Baidoo case. The Family Procedure Rules 2010 provide for a usual method of service of divorce papers (in our case this is by post), and then go on to prescribe some alternative methods should the usual method not prove possible. However, if all else fails the court may direct that service be effected ‘by an alternative method’. This phrase would seem to be wide enough to encompass social media.
Judges have been quick to recognise the benefits of social media in the family law context. Social media is an instantaneous and global means of communication which can be a great benefit when families are separated. It is not unusual, therefore, to see the setting up of social media accounts included in the arrangements for children following divorce as a means of maintaining contact between parent and child.
The family courts also recognise that there are those who abuse social media. Judges are often called upon to make orders designed to prevent social media being used as a vehicle for threatening behaviour or harassment. In a recent judgment concerning comments made on social media about the social workers and other professionals involved in a child care case, the President of the Family Division referred to the fine line to be drawn between free speech and abuse and emphasised the court’s willingness to act against those whose use of social media crosses that line.
Social media is certainly becoming a feature of family cases. There have been some recent studies which suggest that it is now common for divorce papers to cite the partner’s use of social media (for example, sending flirtatious messages to third parties) as one of the reasons for the breakdown of the marriage.
In family cases the manner in which the parties live their lives is often the subject of scrutiny. The way in which a person uses social media can be a reflection of their life. In certain circumstances the court may be prepared to compare ‘life’ as revealed through social media with the version of ‘life’ being presented to the court to see if the two match. In a recent case, for example, the court looked at social media records to ascertain whether one of the parties had, as the other party alleged, visited a particular location.
To the extent that social media is a means of catching out those who seek to deceive, or vindicate those wrongly accused, it can be regarded as a positive. However, social media can also be something of a trap for the unwary in the family law context. Family breakdown is a distressing process and those going through it will frequently turn to others for emotional support. Today this will often take the form of using social media. People may be in the habit of sharing a range of highly personal information via social media. Yet it is a public forum, however careful the user is with privacy settings. Unguarded comments may come back to haunt the user in future proceedings or in ongoing relationships. For example, the angry parent who shares unkind comments about their ex-partner with trusted ‘friends’ via social media, forgetting that one of those ‘friends’ is the couple’s child.
Family law, more than any other legal discipline, is a reflection of society. As society moves on, so family law must change and adapt accordingly. Legislation is a slow process which means that statute can sometimes lag behind. Then it is for the judges, just like the judge in the Baidoo case, to find the means to meet the modern needs of the case. Fortunately, the family judiciary in this country see modern society in their courtrooms every day and have a proven track record of accommodating it.
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