Australian Court Okays Foreclosure via Facebook

In December, an Australian court allowed the transmission of mortgage foreclosure documents via Facebook. The case is an example of how social networking technology could expand beyond its current role as a communication network purely for friends, a development that could have legal, privacy, and records management implications.

Mortgage lender MKM Capital had tried to contact its mortgagees using conventional mail and e-mail for several weeks. Then, lawyer Mark McCormack who is a Facebook user himself, used personal details supplied by one of the borrowers to find her page on the site. He applied to the Australian Capital Territory Supreme Court to serve the legally binding foreclosure documents by invoking the Facebook feature known as a “poke,” a kind of electronic nudge. Facebook also allows messages or attachments to be fixed to the “wall” area of someone’s page.   

In what is thought to be a legal first, the court approved the request. Australian courts have previously approved e-mail and text messaging as means to serve legal documents.

McCormack was unable to actually send the documents, however, since the Facebook profile for the borrowers disappeared amid all the publicity and was most likely closed or secured for privacy. The lawyer noted that the attempt would aid MKM’s assertion that it had taken all reasonable measures to inform the home owners of the action against them.

For records managers, the possibility of sending legal notices through social networking technology raises recordkeeping issues beyond the usual e-mail concerns. Is it possible to keep a record of “pokes?” What proof is there that a message or attachment was written to the recipient’s “wall?” American legal experts have commented that such matters may be far in the future because current U.S. rules for delivering legal documents do not yet include social networking services.

Privacy monitors are concerned that using the sites for legal purposes perverts their intended use as social centers. The Pew Internet Project commented that the Australian case went “well beyond the generally accepted bounds of Facebook.” Few, if any, of Facebook’s 140 million users could have foreseen that their friendship network could be used in such an unfriendly way. Users may want to restrict the openness of their pages by invoking security options.

 Facebook itself took the opportunity to comment that the Australian court’s approval validated the company’s technology as a “reliable, secure and private” medium for communication. One fact is certain: The decision reinforces the notion that social networking is no longer the province of people who just want to hang out electronically. Like it or not, social networking has morphed into another communications channel that may need to be controlled.

ARMA International IMN, January

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