Facebook: To Be a Friend or Not to Be

13 October 2014 Latin America Legal Insights Publication

Argentine courts rule that Facebook friends are not close friends on the terms of the procedural law.

It is a fact that Facebook has 1,300,000,000 monthly active users. That means that most of us have our own Facebook page and lots of “friends.” It is no surprise that we tend to have more friends on Facebook than those we do have in real life. In that regard, it has been argued that friending someone on Facebook has a different connotation to that in real life. The same goes for the “likes.”

This specific aspect of Facebook, being a Facebook friend, was tested before the Argentine courts in two court proceedings (In re Castro Javier Hernan v. Suarez Rodolfo Daniel, Labor Court of Appeals, Chamber VII, Docket No. 2235/11, March 31, 2014; and In re Martinez Paula Eliana v. Hale Contrucciones  SRL, Labor Court of Appeals, Chamber VII, Docket No. 19994/10, March 31, 2014) seeking the recognition of an employment relationship between the parties.

According to the Argentine Procedural Law Code in Civil and Commercial Matters, witnesses are requested to indicate up front if they are close friends to any of the parties. Although being a close friend does not in itself prevent them from being witnesses, courts are required to weigh their testimony under the rules of logic and experience or judicial discretion (“sana crítica” in Spanish) to balance any effect friendship may pose on them.

In two recent decisions, the Labor Court of Appeals concluded that a Facebook friend has not, per se, a similar to or comparable meaning to that of a close friendship as set forth in the Procedural Law Code.

The Court stated that the fact that a party and a witness share friendship on their Facebook pages is not enough to spoil its testimony as it is the Court, under the rules of judicial discretion, who should weigh that testimony and consider if it has been influenced by friendship or not, taking into consideration all other evidence submitted and produced.

In both cases, the objected testimonies were crucial to prove the existence of an employment relationship between the parties.

On the basis of these decisions, with its inherent limited scope, it would not be possible to successfully object a witness testimony solely on the fact that the witness and one of the parties are Facebook friends.

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