Insights

Are You Really My Friend?

Are you really my friend?
A judge should not decide cases where his or her impartiality is affected or appears to be affected. So where a friend is involved, a judge should recuse himself.

Does this apply to Facebook friends?
This is the issue recently decided by the Cour de Cassation, France’s highest court (Le Monde 5 January 2016).

A professional misconduct case was brought against a lawyer by the Paris Bar. He argued that the members of the disciplinary tribunal, judging his case, should recuse themselves. He asserted that they were listed as friends of the president of the Bar on Facebook. The disciplinary case was taken in the name of the president.

So what did the court decide?
In December 2015 the Court of Appeal had held that a social network was simply a means of specific communication between persons who shared a common interest or the same profession; the fact that they were contacts on the web did not make out a case of bias.

On 5 January 2017 the Cour de Cassation supported the views of the Court of Appeal. It decided that the term “friend” used to describe persons who entered into contact with each other on social networks did not refer to the relationship of friendship in the traditional sense of the word.

The US view
In 2013 the American Bar Association published a formal opinion on the issue. It concluded that a judge can use social media, but must comply with the standards of judicial conduct in doing so. It is the nature of the conduct, whether on-line or not, that is important. The designation as a connection on social media does not of itself indicate the degree or intensity of a judge’s relationship with a person. This view resonates with that of the French court.

The position in the US varies greatly from state to state. The spectrum stretches from the position adopted by the ABA to a rigorous disapproval of social media contact.

Future Arguments
It is clear from the views of the French court and ABA, that an argument might be made in an appropriate case that the level of personal information and interchange on Facebook does create the perception of bias that would require recusal.

However, for the moment, we have a judicial authority for the proposition that a Facebook friend may be indeed my friend, but not all of my Facebook friends are my friends!

For further information on this topic, please contact Paul Keane at pkeane@reddycharlton.ie


Keywords: Publication, Paul Keane, Commercial Litigation

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