When friendship becomes legally relevant

Friendships are not something many people would expect to see under the law’s radar. And, for the most part, they would be right.

This was not the case, though, for Mr Yann D., a lawyer registered and practising with the Paris Bar who in 2015 appealed before the Cour de cassation a decision handed down in a disciplinary proceeding against him. Mr D made a plea challenging the impartiality of his colleagues who had been called to sit on the Council of the Order of lawyers to the bar of Paris seized of the disciplinary action against him.

In the appeal, Mr Yann D. invoked the ‘friend’ status of the persons concerned on social networks as evidence of their prejudice as members of the decision-making body of the Council of the Order of lawyers to the bar of Paris. In essence, he argued that the ‘friend’ relationships between several of the Council’s members on Facebook cast doubt on the legitimacy of the disciplinary proceeding against him.

Unfortunately for Mr D, the court was of the opinion that the Court of Appeal’s appreciation of the facts was correct. In Arrêt n° 1 du 5 janvier 2017 (16-12.394) – Cour de cassation – Deuxième chambre civile, the Cour de cassation relied on the Court of Appeal’s reasoning. The Court of Appeal has held that the term ‘friend’, when used to refer to persons who accepted to get in touch via a social network, does not represent friendship relationships in the traditional sense of the term and that the existence of contacts between these different persons through a social network is not sufficient to characterise any particular bias. The court continued to say that a social network is merely a specific means of communication between people who share the same interests and, in this case, also the same profession. On these grounds, the Cour de cassation dismissed the appeal as unfounded.

Be careful who you befriend (or not)?

In a way, this decision marks a significant departure from the common understanding that people’s digital lives are an extension of their real lives. The Cour de cassation pointed out that the mere fact that a person is ‘friends’ with another person on a social network is not, in itself, sufficient to justify concluding that the Council’s members are biased. It also said that social networks are simply a means of communication. If this is indeed so, then is the fact that two persons have become ‘friends’ on a social network evidence of any relationship between them at all, or rather, is it more like just having each other’s phone numbers in a contacts list for any reason?

It is not unimaginable that in the near future such strict construction of the role played by social networks in determining the social relations between people could lead to unforeseen consequences in other legal domains. Thus, for example, it is reasonable to ask what the effect of such interpretation would be on the conclusions reached by intelligence or law enforcement agencies in the context of social media intelligence. Would the act of ‘liking’ an extremist or violent-inciting content on a social network still be sufficient to give rise to reasonable doubt that the person who ‘likes’ the content subscribes completely to the ideas expressed, or rather, would it be insufficient, in itself, to justify such general conclusions?

While the answer to this question depends on an array of factors and will thus never be straightforward or ‘black & white’, it is worth considering how social networks change interpersonal relations in ways that require the law’s intervention in areas traditionally considered as ‘matters of social practice’.

This article was first published in CiTiP Blog and is reprinted here with the author's full permission.


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