You are sitting at home scrolling through your Facebook newsfeed, and you see that you have a new message. When you click on it, you see the words “You have been sued.”
This is a joke, right? Unfortunately, no. Your Facebook, Twitter and Instagram accounts became toxic on December 31, 2020. If you blinked, then you might have missed it.
That is the day the new rules for serving legal documents went into effect. You can now be formally served with a lawsuit through your social media account.
How Can You Be Sued Through Your Social Media Account?
To be clear, the plaintiff must first try to serve you through the traditional method: in person or by certified mail. Only if that is not successful can the plaintiff then ask to have you served via social media.
The change stems from a 2019 new law that required the Texas Supreme Court to adopt new rules for service. The Court obligingly changed the Rules of Civil Procedure and made it effective just in time for the new year.
There are a lot of questions that have yet to be answered about social media service. Because it is so new, there is no Texas caselaw. However, several states have already ventured into social media service, including New York and California. We can therefore look to those states for cases that clarify some of the fine points of the new rules. Just remember that the following information is not yet settled Texas law.
How Do You Get Permission For Social Media Service?
To get permission for social media service against you, the plaintiff must show that you regularly use and maintain your social media account. Proof could include age of your profile, the quantity and history of your posts, and examples of direct communication through the account. In other words, your practice of commenting on pictures of cute babies and posting recipes for fabulous Texas barbecue could be used against you in a court of law.
As could your snide on-line messages to your spouse. In one New York case, a court allowed a divorce summons to be served solely by private Facebook message to the spouse’s account.
Who Can Be Sued Through Social Media?
The new rules do not only apply to people; they also apply to businesses. In another New York case, social media service was ordered against a defendant who ran an online business, communicated with customers via email and advertised its business on its Facebook pages.
Nor are the new rules only effective against U.S. citizens. A California case allowed service on an international defendant through Twitter.
The new rules also provide for initial service of a lawsuit or order by email. There is no guidance yet on how you are supposed to distinguish virus-laden emails from formal court- service ones.
Can You Fight Back If You Are Sued Through Your Social Media?
If this new rule does not seem fair, then you have a pretty good point. Somewhere in the process the court is going to be concerned about whether the intended recipient actually received the documents via email or social media. After all, some people do not use their social media accounts for private communication. You, for example, may have an active Facebook newsfeed but not use the messenger function.
Other people may limit the functions of a social media account. You may have limited your Twitter platform to only certain permissions, which will result in you missing “tags” intended for you.
What does this mean to you? If you are expecting to be sued, then you might consider regularly monitoring your social media and email accounts. Or you could delete those accounts and go dark.
Virginia will be doing a free virtual speaking event on April 7th 2-3:30pm for the Dallas Library.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter contact her at legaltalktexas@hammerle.com.
