Friend or follower?
Courts are wrestling with the legal definition of users of social networks. Nathalie Dreyfus examines how they have done so far
A 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 Court of Cassation on 5 January 2017 (16-12394) 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’
The Court of Cassation confirmed the appeal decision of December 2015 (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 judgement were friends with the prosecution (the ‘Bâtonnier’) and the claimant.
As proof of this friendship, it was argued that some members of this council are part of the Bâtonnier 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”.
In December 2015, the Paris Court of Appeal considered that the term ‘friends’ was not to be understood in the traditional sense. Then in January this year, the Paris Court of Cassation supported this view, rejecting the conflict of interest theory. To justify its decision, the court stated 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 January decision 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 trivialises 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 January judgement 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 January judgement, the Court of Cassation showed common sense by confirming that a friend on a social network should not 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 with 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. Admittedly, the decision to define Facebook ‘friends’ is innovative, but in the US the qualification of Twitter followers has already been determined by the courts from a very different perspective.
In 2011’s PhoneDog v Kravitz (11-03474), 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 US, involving mobile phone company PhoneDog and its employee Noah Kravitz, in charge of promoting the trademark on the social network. Kravitz had a Twitter account whose username was @noahkravitz. This account became very popular, generating a 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, 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 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 Kravitz finally reached an agreement wherein the information remained confidential. As for 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 it 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 Kravitz and not to PhoneDog. The second criterion is that there is a “commercial value”.
According to 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 an employee and without having agreed on a non-competition clause, PhoneDog was inevitably running the risk of its employee working for a competitor.
The legal definition of users of social networks (friends, followers) is being increasingly discussed by courts. It remains, however, that this definition is unclear despite the fact that 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”.
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 email address, gives access to an information exchange platform with other Internet users on various subjects.” (Nathalie Dreyfus, Marques et Internet: Protection, Valorisation, Défense, 2011).