France-US: The judicial qualification of friends on social networks

tree-200795_1920A friend is a person for whom we feel a sense of affection, of that we are sure. As commonly defined by dictionaries, there is a second definition. With respect to information technology, a friend is a member of a social network who is granted access by another member to his or her personal information. Likewise, the “friend” allows that member to access their personal information. The distinction is interesting in the sense that the term “friend” is demystified and tends to lose its notion of intimacy. However, in theory, access to personal information should incorporate this concept of intimacy because of how sensitive the information is. The definition given by the Cour de Cassation on January 5, 2017 (Cass., 2ème civ., 05.01.2017, no.16-12394, Publié au bulletin) supports this theory. Indeed, within the framework of a social network, a friend is a person who shares the same interests without necessarily sharing a feeling of affection or even intimacy.

> The definition of Facebook “friends”

On January 5, 2017, the Cour de Cassation confirmed the appeal decision (Paris, December 17, 2015, no. 15/23692), by determining that a friend on social networks does not abide by the traditional meaning of the term but refers to the existence of common interests.

In the present case, a Paris lawyer challenged the legitimacy of one of the Bar Council’s decisions, claiming that the members of the disciplinary tribunal responsible for the judgment were friends with the prosecution (The “Bâtonnier”) and the claimant.

As proof of this friendship, it is argued that some members of this council are part of the “Bâtonnier”’s and the claimant’s network of Facebook friends. Consequently, a lawyer who received disciplinary sanctions invoked a conflict of interest. He considered that even before his case was examined, he was being “pre-investigated and pre-judged”.

On December 17, 2015, the Cour d’appel de Paris considered that the term “friends” was not to be understood in the traditional sense. Then on January 5, 2017, the Paris Cour de Cassation supported this view, rejecting the conflict of interest theory. To justify its decision, the Court states that “the social network is merely a specific means of communication between persons who share the same interests, and in this case the same profession. Also, the mere fact that the persons subject to the claim are friends of the “Bâtonnier”, the prosecution, does not constitute a justification for undertaking verifications.”

This unprecedented analysis reminds us that social networks are so new that we are at the early stages of their legal qualification. If the law has not yet done so, it is left up to the judges.

> Issues with this definition

Some issues still cannot be addressed under current legislation. For now, judges are the first reviewers of these disputes and are the first to rule on the matter.

The solution brought forth by the courts is interesting given the current context. The case dated January 5, 2017 is thought-provoking in relation to the “friendship ties” on Facebook held with people identified as being close to terrorism or any other criminal activity. The simple fact of being a “friend” on a social network with a person identified as such will not constitute tangible proof enough to act against “friends”, or other members of the social network.

However, with respect to information technology, the definition of the term “friend” given by case law trivializes the exchange of personal information to a meaningless degree, and without any consequences since the exchange takes place without any actual friendship bond. This implies that granting a third party access to one’s personal information is an ordinary act devoid of any legal impact. In a relationship with a professional, one must consider the provision of personal information as an agreement: it is an actual covenant. On the other hand, the judgment dated January 5, 2017 lays down the principle that a relationship between two non-professionals consisting in the exchange of personal information is not an agreement. It is, however, a legal act. The two members of the social network’s wills are needed so that one sends a friend request to the other and the other accepts. These two acts are evidence of their agreement.

In the judgment dated January 5, 2017 the Cour de cassation showed common sense by confirming that a friend on a social network was not to be regarded as a friend in the traditional sense. However, we recommend caution around this qualification as it will probably require some clarification in the future.

> Qualification of Twitter followers

Twitter and Facebook are social networks, which have similar reputations and are used worldwide. Facebook has 1.71 billion active users each month while Twitter has 313 million active accounts and 277,000 tweets published every minute. These two economic players are generally self-indulgent and have produced, among others, WhatsApp (Facebook, 2014) and Periscope (Twitter, 2015), two rising Internet stars. However, they also have common issues, for instance, being both banned in China.

Admittedly, the decision to define Facebook “friends” is innovative, but in the United States the qualification of Twitter followers has already been determined by the courts from a very different perspective.

In 2011 (PhoneDog v. Kravitz, No. 11-03474, N.D. Cal. Nov. 8, 2011), a Twitter account, its content and its followers were classified as trade secrets in the dispute between PhoneDog and Noah Kravitz.

In this case, the dispute took place in the United States, involving the mobile phone company PhoneDog and its employee Mr Noah Kravitz, in charge of promoting the trademark on the social network.

Originally Mr. Kravitz had a Twitter account whose username was @noahkravitz and this account became very popular, generating a very large number of followers. It was then that the company PhoneDog offered to hire him in order to promote the trademark on his account.

At the end of his employment contract with PhoneDog, Mr. Kravitz was offered a contract with the direct competitor of his previous employer. He accepted the offer, but PhoneDog had different views on the matter, and initiated proceedings against its former employee.

The claim involved recovery of the Twitter account where passwords were targeted, as well as $ 340,000 in damages. PhoneDog claimed that the Twitter account and followers belonged to it and were trade secrets.

The case was not successful because Mr. Kravitz raised an objection to jurisdiction. Indeed, using websites like tweetvalue.com and whatsmytwitteraccountworth.com, his Twitter account was assessed to be worth less than $ 8,000. He alleged that the Federal Court lacked jurisdiction to hear this matter.

PhoneDog and Mr Kravitz finally reached an agreement wherein the information remained confidential. As for Mr Kravitz, he continues to use his Twitter account @noahkravitz without risk of interference.

> The impossible qualification of trade secrets in Europe

According to the European Commission, “information protected through a trade secret can be strategic for decades (for example a recipe or chemical compound) or ephemeral (the results of a marketing study, the name, price and launch date of a new product, or the price offered in a bidding procedure).”

It must meet three criteria: it is not public or “easily accessible”; it has a “commercial value” because it is confidential and is subject to “reasonable provisions designed to keep it secret”.

In Europe, such a qualification would probably not have been accepted insofar as trade secrets must meet three criteria. The first criterion is that it is not public or “easily accessible”, indeed, although the passwords were not accessible, the followers were and they cannot be appropriated. In addition, this account belonged to Noah Kravitz and not to PhoneDog. The second criterion is that there is a “commercial value”, according to Noah Kravitz’s claims to raise the objection to jurisdiction, the value of the account amounted to $ 8,000. Finally, trade secrets must be subject to “reasonable provisions destined to keep it secret”, in this case by not renewing the contract of their employee and without having agreed on a non-competition clause; the Company PhoneDog was inevitably running the risk that their employee works for a competitor.

The legal definition of users of social networks (friends, followers) is increasingly apprehended by the courts. It remains, however, that this definition as such is unclear despite the fact that the case-law and the European Parliament have taken up the matter. Article 1 of Directive 98/34/EC, as amended by Directive 98/48/EC, provides that “social networks shall be Information Society services” and Article 29 of Directive 95/46/EC provides that “social networking is enabled using tools which provide a list of contacts for each user, and with which users can interact”.

Thus, the only proposed definition of the social network, based on these directives, is “An online communication platform that allows an internet user to join or create one or more network of users sharing common interests. In practice, a social network is presented as a website which, after a free registration which involves providing summary details such as the surname, date of birth and e-mail address, gives access to an information exchange platform with other Internet users on various subjects“. (Nathalie Dreyfus, « Trademarks and  Internet: Protection, Valorization, Defense », Lamy Axe Droit, 2011, p325.)