By Razvan Ionescu and Loredana Cristea
At a time when public attention is caught by the scandal about possible data leaks that Facebook Inc., holder of Facebook social network, is accused of, a seemingly insignificant news in a local newspaper announces a premiere in the justice of Romania – a judge decided to summon a party through Facebook.
The recent practice of the courts from Cluj – Napoca shows us an unprecedented solution in the matter of summoning, in the sense that, in a criminal case, the court ordered that the summons be served through Facebook, because the summoning by usual means of service proved to be ineffective. Since for technical reasons, the IT department of the court was unable to act on the request, the summoning by this means was not carried into effect in the end, and the judge thus took note of the “impossibility to serve judicial documents transmitted as a result of a request for international judicial assistance.”
Even if the order of the court could not be effectively carried into effect, the analysis of the possibility of summoning and serving procedural documents in this way can give rise to extensive discussions from the perspective of the interpretation of legal provisions, the qualification of the summoning and the concrete effects produced.
- Legal framework
The relevant legal provisions in force in civil procedure matters (art. 154 of the Romanian Civil Procedure Code) lay down the means whereby writs of summons and procedural documents are served:
“Writs of summons and other procedural documents can be communicated by the court registry by telefax, electronic mail or other means capable of transmitting the text of the document and ensuring confirmation of receipt, where the party concerned has provided the court with the relevant data for this purpose. For confirmation purposes, the court will enclose with the procedural document a form […].”
Furthermore, art. 167 stipulates the cases in which the summoning is made by publicity and the concrete manner in which it operates:
“(1) When the claimant reasonably states that although he did everything he could, he could not find out the address of the defendant or another place where the writ of summons could be served on it according to the law, the court may approve summons by publication.
(2) Summons by publicity is made by displaying the document at the door of the court, on the portal of the relevant court and at the last known address. Where deemed necessary, the court may order the publication of the summons in the Official Journal of Romania or in a widespread national newspaper.”
- Interpretation of the text of laws in the sense that summoning could also operate by other alternative means (e.g. social networks)
The first question that arises is whether summoning through this means equates to a method of summoning by “publicity” or equates to one of the means of communication alternative to direct communication or to communication by e-mail / fax.
We consider that the means of communication through social networks cannot be equivalent to one of the methods of summoning through “publicity”, as the law restricts the cases in which such method operates, more precisely at the court’s door, on the portal of the court, by publication in the Official Journal or in a widespread national newspaper.
Thus, even if the Facebook personal profile is considered, in the light of recent Romanian case-law, as “public space”, as it does not fall into the express cases provided by the law, we consider that it could not successfully carry out the summoning by publicity, even if, for example, those documents were published on the “wall” of that institution’s Facebook page. We note, however, that from the point of view of efficiency, given the extent of this phenomenon, we do not exclude that such a measure may prove to be even more effective than summoning, for example, through a national newspaper or even through the Official Journal.
However, by reference to the second question, from the analysis of the legal texts indicated, one may notice that there is an alternative means of ensuring the summoning if the following conditions were met:
- The means of communication ensures the transmission of the text of the document;
- The means of communication ensures the confirmation of its receipt;
- The party concerned provided the court with the relevant data for this purpose.
Therefore, if the party would indicate the required data and the writ of summons or the procedural documents would thus be transmitted through Facebook messaging service and, last but not least, the respective person would confirm the receipt of the attachments by filling in the form specified by the law, then, at least at first sight, the requirements imposed by the law seem to be fulfilled and, as such, the summoning by this means is operative.
We show by way of example that service of summons through social media seems to have been embraced as well in other law systems, notably the Manhattan Supreme Court, which summoned in a divorce trial one of the spouses through Facebook Messenger, considering that it is his fundamental right to take part in the judgment of that case and thus to take note of that summons.
Thus, we do not exclude that in the future this method will actually be used in Romanian court proceedings as well, given that from the analysis of the legal provisions, such a means would comply with the aforementioned conditions.
- Advantages and risks deriving from such a solution
Given that we are in the century of speed, obviously, summoning through social media can lead to a more rapid settlement of cases by a more rapid communication of procedural documents, while avoiding at the same time the summoning by publicity, which, by reference to daily practice, turned out to be inefficient and outdated.
However, there are also some risks implicitly arising from the use of this means of communication, such as whether or not the summoning procedure is considered legally fulfilled, so that the rights of defence of the person summoned are observed. Another issue is related to the likelihood of violating the right to privacy of the person summoned through the public posting of documents on the Facebook page of the court.
Most likely, some time will pass until the moment when the service of summons by Facebook will become widespread, and during such time, on the one hand, people will become more aware of the advantages of this type of communication, and on the other hand, they will be able to provide the necessary logistics to ensure the confidentiality of the transmitted information. What is important at this point is the fact that there has been an innovative idea, which, most certainly, had also passed through the minds of other practitioners, but they probably did not have the opportunity or the courage to put it into practice. Alea iacta est.
*Razvan Ionescu is senior associate at PeliFilip Law Firm; Loredana Cristea is associate at PeliFilip Law Firm