By Elissa Baxter and Nitesh Patel -
Snapshot
- Practitioners are using social media to provide legal services to clients, often at their request, without considering the risks.
- Courts have recognised the utility of social media when ordering substituted service, but only in appropriate circumstances.
- Practitioners should tailor their use of social media according to the needs of the firm. However, practitioners should bear in mind their record keeping obligations as well as the privacy, security and privilege risks that arise from the use of social media.
- Failure to properly address the risks of conducting matters over social media platforms has resulted in claims against firms and practitioners that are difficult to defend, particularly where record keeping obligations have not been met.
Social media has changed the way we communicate and is increasingly being used in the law as another way to communicate with clients and other parties. While there can be benefits to using social media in some circumstances, there has also been a concerning trend where the defence of a claim has been impeded by the limitations of using social media as a business tool.
As practitioners incorporate the use of social media into their practices, they need to fully consider the limitations of social media and how to address the risks.
Substituted service via social media
Sometimes the quickest and most reliable way to contact someone is via their social media profile. Courts have, for some time, recognised this and ordered substituted service by social media when traditional means of service have failed – but only in appropriate circumstances.
For example, in Wakim v Criniti [2016] NSWSC 1723, Justice McCallum of the NSW Supreme Court made an order for substituted service of a statement of claim by the defendant’s social media accounts. Her Honour made the order after she was satisfied the plaintiff had made thorough and extensive attempts to locate the defendant physically but could not practicably serve the originating process in person. She also noted the defendant had been active on Facebook and Instagram. In that case, the Court was satisfied that the proceedings would be brought to the defendant’s attention if it was served on social media.
