vendredi 25 août 2017

Is A Facebook ‘Friend’ The Same As A Real Friend, Legally Speaking?

Thanks to Facebook, the term “friend” has been stretched far beyond its traditional definition. Many Facebook users have “friends” they have never met in person, haven’t seen in years or decades, know very little about, and who you may actually find objectionable in spite of the “friend” designation. That’s why, according to one Florida appeals court, being someone’s Facebook friend is no indication of any genuine familiar or intimate connection to that person.

This issue recently came up before a Miami-based state appeals court, where a law firm sought to have a Miami-Dade trial court judge removed from a case because the judge is a Facebook friend of a lawyer representing a potential witness and party to that dispute.

The petitioners argued that trial court Judge Beatrice Butchko should have recused herself because her social media relationship to the other attorney — himself a former judge — engendered a “a well-grounded fear of not receiving a fair and impartial trial.”

A three-judge appeals panel pointed out [PDF] that the state’s highest court has long held that allegations of mere friendship are not sufficient for disqualifying a judge, but that a friendship can still be a factor in forcing a judge to step aside.

The question of judges’ social media connections has been evolving over the last decade, as Facebook and other platforms have become nearly omnipresent.

In 2009 the Florida Judicial Ethics Advisory Committee issued an opinion saying that judges in the state may not “add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their ‘friend.'”

The Committee later refined this opinion, saying that candidates for judicial office could friend and accept friend requests from lawyers, even if these attorneys would later appear before the judge, while reaffirming that sitting judges should not be social media friends with lawyers who might argue cases in their courts.

The state’s appeals courts have not been universal in their interpretation of these ethics rules. In 2012, one appellate panel compelled a trial court judge to recuse himself because of his Facebook friendship with the prosecutor. The court found that because the judge actively accepts or denies Facebook friendship requests (as opposed to Twitter where people can follow you without you having to follow them back), this action “conveys or permits others to convey the impression that they are in a special position to influence the judge.”

More recently, an appeals panel in a different Florida district also agreed that a judge must recuse himself for unsuccessfully attempting to Facebook friend the wife in a divorce case he was hearing, while also cautioning that the ethics committee’s opinions on judge’s social media use could have unintended consequences.

The panel in that case said it had “serious reservations” about the notion that a mere Facebook “friend”-ship creates a conflict of interest that requires recusal. The judges said that “friend” is probably not the best word to use to describe a Facebook connection.

“A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger,” wrote the panel in the 2014 decision. “A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook ‘friend’ and any other friendship a judge might have.”

If you accept the idea that a Facebook friend is automatically cause for recusal, then judges would be forbidden from hearing any case involving anyone they may be even mildly acquainted with, said the 2014 panel. “Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”

This week, the state appeals panel hearing the petition to remove Judge Butchko from the case agreed with the core of the 2014 conclusion, noting that Facebook connections no longer mean what they might have nearly a decade ago when the ethics committee released its opinion.

“[S]ome people have thousands of Facebook ‘friends,'” writes the Butchko panel, pointing to examples like a Kentucky case where a court ruled that a juror’s Facebook friendship a family member of the victim was not enough to warrant a new trial; or a Tennessee trial judge who did not know that a potential witness in a case was one of his 1,500 Facebook friends. That witness, a basketball coach, had several thousand friends on the social media platform.

“Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” adds the panel, who also pointed out that many Facebook connections aren’t the result of real-world connections, but rather of Facebook’s artificial intelligence.

“[M]any Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions,” explains the panel. “Facebook data-mines its members’ current list of ‘friends,’ uploaded contact lists from smart phones and computers, emails, names tagged in uploaded photographs, internet groups, networks such as schools and employers, and other publicly or privately available information. This information is analyzed by proprietary algorithms that predict associations.”

This “People You May Know” function on Facebook seems to undermine the previous court’s assertion that accepting or rejecting a friend request is some sort of conscious communication by the Facebook user.

“To be sure, some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty,” concludes the ruling. “The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a ‘friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

With disagreement among the state’s appeals court districts, it will ultimately be left to the Florida Supreme Court to decide when exactly a judge’s social media connections cross that ethical line.

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