Thursday, March 28, 2013

Support Online Legal Notices, But Oppose Florida Senate Bill 1666

Brevard Times Editorial

A bill introduced by Florida State Senator Jack Latvala (R-Clearwater) proposes to substantially change the legal process for foreclosures in Florida.   Included in Florida Senate Bill 1666 is a provision for the publication of foreclosure sales online rather than in hard-copy newspapers.

Legal notices should be brought into the 21st Century and published online.  However, the law must be crafted so that the online legal notices reach the widest possible audience within the county where the litigation takes place and is uniformly applied to all court proceedings.  Senate Bill 1666 fails to accomplish any of those goals.

Online versus Print

Publication of legal notices in hard-copy newspapers does very little to reach an audience under 50 years of age.  According to a Pew Research poll conducted in December 2010, there is an enormous divergence amongst age groups where Americans get their news:

             Internet     Television     Newpaper    Radio
18-29     65%          52%              21%          15%
30-49     48%          63%              22%          19%
50-64     34%          71%              38%          15%
65 +       13%          79%              47%          14%

Publication of legal notices on free online news websites would resolve this age discrimination in the legal process.  The current law requires that hard-copy newspapers publish legal notices on their websites and also on  But the current law does not address the move by hard-copy newspapers in recent years to a paid website model where it is unlikely that non-subscribers, who are disproportionately low income, minority, or under 50, would visit. 

Reduced Costs To Florida Taxpayers and Litigants

If the legal notice requirement were opened to free online news websites, local television news websites, and local news radio station websites, the increased competition would lower the rates Floridians pay for legal notices.  Also, it would reduce the enormous costs local governments pay when they are required by Florida statute to publish legal notices.

Notice and Due Process

Senate Bill 1666 makes little effort to require a legal notice publication that would likely be seen by geographically-targeted residents and potentially interested parties (which is the fundamental purpose of a legal notice publication.)

The proposed Senate Bill 1666 does not require that legal notices be published on a news website.  Instead, it only requires publication on a website with 100,000 total impressions a month.  More importantly, it does not require that those impressions come from within the county where the party resides or the proceeding takes place.  

The problem with this loosely-defined website requirement is that it is not difficult at all to artificially generate website impressions.  Additionally, even if the the impressions are genuine, those impressions could come from anywhere around the world.  

Readers are accustomed to relating and finding legal notices with local news.  Restricting the online legal notice publications to local news websites would still create a competitive environment to lower costs while at the same time reaching the intended audience.

Foreclosure Carve-Out

The bill only addressees legal notices related to foreclosure proceedings.  Any law affecting the legal notices of Florida court proceedings should be done in a uniform manner and not piecemeal.  If the online publication is sufficient enough notice for one type of court proceeding, then it should be sufficient for all court proceedings.

The portion  of Florida Senate Bill 1666 that relates to online legal notices follows:

 Section 3. Section 50.015, Florida Statutes, is created to
  175  read:
  176         50.015Publicly accessible Internet website.—
  177         (1) A publicly accessible Internet website must be approved
  178  for legal publication, advertisement, and notice by the Florida
  179  Clerks of Court Operations Corporation and must:
  180         (a) Maintain a notice of foreclosure action for 90 days
  181  following the first day of posting or for as long as provided in
  182  subsection (3), and maintain publications of sales searchable
  183  and accessible to users for 10 years following the first day of
  184  posting.
  185         (b) Receive at least 100,000 total impressions a month,
  186  which must be certified by a recognized Internet search engine.
  187  As used in this paragraph, the term “impression” means the time
  188  at which a notice is viewed once by a visitor on an Internet web
  189  page.
  190         (c) Maintain 24-hour customer support, along with live
  191  electronic communication and telephone support for a minimum of
  192  12 hours a day during peak-time usage, and post online tutorials
  193  for users.
  194         (d) Be maintained on a data center that is compliant with
  195  the Statement of Auditing Standards No. 70, and the website
  196  provider shall provide the clerk of court with a certificate of
  197  compliance with the Standards.
  198         (e) Provide 24-hour access at no charge to the chief judge
  199  of each judicial circuit and his or her designee, as well as to
  200  each clerk of court and each deputy clerk. The website provider
  201  must develop and maintain on file and provide to each clerk of
  202  court and each chief judge a disaster recovery plan for the
  203  website.
  204         (2) The website provider shall publish its affidavits
  205  electronically in substantial conformity with ss. 50.041 and
  206  50.051 and may use an electronic notary seal.
  207         (3) Legal publication, advertisement, or notice of
  208  foreclosure action shall be posted within 3 business days,
  209  excluding court holidays, after the date for the foreclosure
  210  sale is set and shall continue for 10 days after the foreclosure
  211  sale, or for 90 consecutive days, whichever period is longer.
  212         (4) Each clerk of court may contract with a publicly
  213  accessible Internet website provider for legal publication of
  214  notice of foreclosure action as required by s. 702.035.
  215         (5)A publicly accessible Internet website may charge a fee
  216  of up to $50 per notice.