Social media as a tool for litigators: Facebook used to blow Flo Rida's whistle

© Eva Rinaldi

In October 2011 Flo Rida failed to turn up to headline at the Fat As Butter Festival in Newcastle, New South Wales, Australia. As he was supposed to walk on stage the festival was forced to announce: "Flo Rida has slept in and will not be able to make the concert". Understandably, fans were outraged. The festival organisers, Mothership Music Pty Ltd, sued Flo Rida and his manager for breach of contract: they had paid $50,000 for a performance that they had not received and alleged damage to their reputation.

This isn't a copyright case, however from it arise several interesting points of practice which will be relevant to all litigators. Because Mothership was never able to get close enough to Flo Rida to serve the claim on him whilst he was in Australia, it applied to court for alternative means of service. In April of this year Gibson DCJ ordered substituted service by email and by a post on Flo Rida's Facebook page. The court order set out the text to be posted on Facebook.

The Judge referred to the "international reach of Facebook" and to previous case law where service by Facebook has been ordered:

"There have been prior examples of service being effected by Facebook. According to the Sydney Morning Herald ("Australian court serves documents via Facebook" (Nick Abraham, 12 December 2008)), Master Harper, in the ACT Supreme Court, ordered that default judgment could be served on defendants by notification on Facebook, in what the Herald called "first in Australia and perhaps the world". Unfortunately, this decision is not available on LexisNexis or Austlii, so I will have to take the Herald's word for it.

However, in the Federal Magistrates Court (Byrne v Howard [2010] FMCAFAM 509), Brown FM made an order for substituted service via Facebook and other electronic means including email ([17] to [28]). Such an order could conceivably cover Twitter accounts as well as Facebook accounts if that was necessary. Similar evidence was put before the learned magistrate in that case to the evidence that is before me today."

This case shows that service by Facebook is, in Australia at least, becoming an acceptable alternative where traditional methods of serving claims are not possible.

Flo Rida never showed up in Court, so last week the hearing went ahead without him with the Judge awarding damages of $380,000 including $302,000 for loss of reputation arising from breach of contract. Further the judge referred to the impact of social media on the damage to Mothership's reputation as news of Flo Rida's no show spread wide and fast thanks to Facebook, YouTube and Twitter.

We know that the reach of social media is huge however it is interesting to see Courts being so progressive: if Facebook can be used to serve proceedings defendants will find it hard to escape being served.