April 16, 2018


Cambridge Analytica: Probationary Perspective, Accountability Perspective

by Marie-Anne Frison-Roche

It is about a particular case that one can rephrase the general questions. If the case is hot, it is even more important to return to the general questions, which are always colder (more boring, too).

Thus, Cambridge Analytica is a case of which everyone speaks a lot ... It is at the same time particular and very burning.

So we talk about it a lot, and with vehemence, and in a way often definitive, as well in attack as in defense.

For the prosecution, there are many advocacies, gathered for example in the Guardian's files.

For the defense, we find less. But one can read for example the article that has been published in early April 2018: Why (almost) everything reported about the Cambridge Analytica Facebook 'hacking' controversy is wrong.

The number of comments, and their more or less inflamed nature, in any case always definitive, does not mean anything in itself.

The regulators took the floor a little later, both in a more concrete way, the "group of 29" (bringing together all the European Regulators personal data) establishing the 11 April 2018 a working group on this subject and publishing April 10, 2018 new guidelines on the place that must be made to "consent".

But for the moment, if we loof at the media, it looks like a trial, because everyone claims to be entirely right and pretends that the other is entirely wrong. Trial to break the truth and virtue, say the accusers. Trial in witchcraft, says Facebook. And it's always up to us.

Because all this is probably due to the fact that we are no longer spectators: we are placed in the judge's position. The financial market was the first judge. It has already condemned. Without really trying to find out. This is because the public good of the financial markets is Trust, it is enough that one can even suspect the wife of Caesar, and so it is not really matter of truth of the facts and goof application of Rule of Law.

For the public opinion that we are, this is something else, because we could wait to know more. And we should, since we seek to remain a little attached to the "truth " of the facts and respect for the Rule of Law. However, this case is complex and is above all a matter of judicial analysis which will come and which we cannot lead ourselves, both in terms of the facts-which are complex-as well as the rules of law to be applied which are equally so.

What turns us into a court, an ordinary sociological phenomenon, is a new legal mechanism: the "whistleblower". By nature, it gives the bonus to the Attack

This logic of the legal mechanism of the whistleblower, a movement of fact to throw facts as one throws a buoy outside but one could also say stones on the firm that the insider denounces, logic today encouraged and protected by the Law, allows a person who knows something, most often because he participated, to let everyone know, without a filter. To denounce it. For the public good..

The successive texts on the whistleblower are nrms of a Compliance Law!footnote-1129 which seek, in particular in French Law, to ensure a balance between this "monumental goal"!footnote-1130 which is the respect of the truth, the fight against corruption, the protection of human beings, etc., and the risks to be endured by the company thus denounced.

The case is exemplary of this, since Facebook is  "denounced" only in second place, behind Cambridge Analytica, but the notoriety and power of the first makes that it is hit first. French law in the so-called "Sapin 2 Act " of 2016 has ensured to protect the company denounced, but British and American Law are more violent, probably because they encourage more the private enforcement.

Temporality is therefore favorable to the attack. The time of the defense is always slower. It is usually the people in situations of weakness who suffer it: slowness of justice, justice outside courthouses, etc. With Compliance mechanisms, it is probably the very powerful who will live this. It is not a matter of rejoicing: the misfortune of some (here the difficulty of a company hasty  "judged") does not console in any way the misfortune of others (the difficulty of ordinary beings accused or having only the right to protect themselves to reach concretely a judge and really get a judgment executed, even as they are in their right).

But if we go to general questions, since on the facts of this case we don't have the means to appreciate them, nor on the rules which apply to them, we cannot apply them in an adequate way until a court will have exercised its office?

However, the general perspectives highlighted by this singular case are two orders: Probationary order (I) and Accountability order (II).



Read below.







Frison-Roche, M.-A., Compliance Law, 2016.


On this notion, Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017.

That is why the future of digital regulation is not in this kind of exteriority of digital content (including Facebook is part) to what passes  "after " them or  "around " from them, an indifference of what happens. Their power is such that they cannot be so indifferent: responsibility is the hallmark of power! Footnote-1133. When Alain Supiot explains that it is appropriate to "take responsibility seriously", he asks that, resuming the "principle of responsibility ", the time of responsibility is not the past (this for which everyone asks accounts to Facebook, without Really seek to understand, nor to know). He asks that the time of responsibility is the future.



By giving information, the whistleblower makes it possible that the Law and people are respected. It is why he is a central figure in the Compliance Law that is being built;, probably on different bases in Europe!footnote-1131 than in the United States.

But the whistleblower simply formulates an allegation.
Even if reality exists, in Law, the "facts " don't exist as such, they exist in a building that  "bases " an allegation, here an accusation.

This was described by a Law professor, Motulsky in his thesis (1948) Principes de réalisation méthodique du Droit  ("principles of the methodical realization of Law"), a central piece of his work, which refers to this notion of  "the Building de facts ". The whistleblower benefits from a special status that will protect him!footnote-1136. Nonetheless, it is the author of an allegation.

He tells a story, to which he associates himself the consequences against an adversary. In doing so he must support the  "charge of the allegation". Indeed, the whistleblower mechanism does not support a "burden of proof", which would be too heavy and would block the mechanism, which aims from a private enforcement perspective, concerning above all corruption!footnote-1137, the whistleblower not having the evidence and having to let the public authorities, in particular the Public Prosecutor in his task l for the collection of evidence!footnote-1138.

But this "allegation charge " remains and it is appropriate that the whistleblower supports it.


The adversarial debate then allows the exchange of evidence and alternating burdens of allegations and then alternating burdens of evidence. The difficulty arises from the fact that these probationary mechanisms are now outside the walls of the courthouses, far from their calmness and the ceremonial design which makes it possible to cool the case so much.

But since trials are being done today and more than ever in the media, and that, sprinkler watered, the trial of Facebook is made on social networks-good news for its competitors-, the gap between basic legal knowledge and general culture is even more cruelly felt!footnote-1140.

This further highlights the need for a common legal education, since not only Law and trials occupy both the media and social networks (which are media, where everyone is an author) but still social networks function as legal spaces. This is progress because it happens in the same way that trials have become a "social place" where questions of societies are debated!footnote-1139..  Social networks widen the circle.It is true not only in Common Law systems but also in Civil Law systems. 

But the legal education of everyone (since everyone is an author, everyone is a judge) is more urgent every day.




What will happen in a digital world whose "Regulation" would be based on the sole "consent " of people?

If these humans "consent", then firms could have their information, take these micro-information like things, build information systems, sell them, etc. These sort of bricks, which are worthless in themselves but are worth gold when reworked, are not things ; they are the projection of the person. Can we cut the link between the person and what he or she gives to see from himself or herself (information) by his or her sole "Consent "?

The notion that is at the center of the whole system is the "consent " which is claimed to be "free expression of free will" : through the consent and by it,  the human being can dispose of everything, including himself, his image, his intimacy, his soul and his body (surrogacy).

This vision is the classic law of the contract.  But the law of the markets, in particular the law of competition or the law of the financial markets, and now the law of digital spaces, show that there is not only a split but an opposition between the "will" and the "consent "!footnote-1132.
Indeed, the "consent " is a thing, something that circulates in a market. If you take the markets where the values that flow there are information, whether it is financial securities or  "Data "!footnote-1141, even when it comes to data on people (personal data). It is not enough to say that the persons concerned have "consented" to the availability of these data.

For now, those who take the defense of Facebook explain in particular that the persons whose data were used had "consented" to this use (which Facebook underlying this agreement, third party to this exchange of consent, is not responsible ).

We can totally support it, but the stakes are not there.

The challenge is to protect people and find organizations that are powerful enough and  "in position"!footnote-114 to do so :  to be "responsible" in Ex Ante to do so: this must be the companies that hold the digital.

That is why the future of digital Regulation is not in this kind of exteriority of digital content (including Facebook is part) to what happens"after " them or  "around " from them, this sort of indifference of what is going on. Their power is such that they cannot be so indifferent: responsibility and accountability are the hallmark of power!footnote-1133. When the French author Alain Supiot explains that it is appropriate to "prendre la responsabilité au sérieux" ("take responsibility seriously"), he asks that, resuming the "principle responsibility ", the time of responsibility is not the past (this for which everyone asks accounts to Facebook, without really seek to understand, nor to know). He asks that the time of responsibility is the future.

What is expected of Facebook is that it takes its "responsibility seriously", i.e. a take of "responsibility in Ex Ante", articulated by Supervision on this firm exercised by the public authorities.

This Regulation of digital space, which is no longer an area but which has covered the whole of life as the financial sector did, must follow the conception of Emmanuel Macron exposed in Davos Forum, Regulation taking the form of operators Supervision!footnote-1134. With great coherence, Emmanuel Macron has asked that these same operators should be allowed to deploy, because this Supervision allows the rules to be effective and leads operators to take charge of general worries, such as the protection of people , which is the very definition of Compliance Law, goes in the direction of their power but regulates their power!footnote-1135.

In fact, by this Compliance, humans could be better protected, not against digital companies, but thanks to them.

In this, the singular Cambridge Analytica case can be a good lesson. For us, who should not judge because we do not know what happened and, judges instituted, we do not respect the principles of contradictory and due process. For the contents of digital, which Facebook therefore, confronted with its own power, this firm must become legally a "power", i.e. to deploy even more but to serve the interests of human beings, even if it is not in his business plan, but if the threats are not of its own making but of a company that has merely gravitated around it. It is the price of their fact power transformed by the Law in legal power, the condition for that Law , and undoubtedly public opinion, admit it.





Frison-Roche, M.-A. (dir.), Pour une Europe de la Compliance (For an Europe of Compliance)2019.


The French legal status of the "lanceur d'alerte" is clear:   this protection is not part of the legal "scheme " of the "lanceur d'alerte", but of his" status " hitself. He is therefore inherently protected, in particular against the company he denounces and to which he most often belongs. The law often named "Sapin 2 Act" is particularly clear on this point. It is not so clear in British and Americain Law. 


Notably in the U.K. in the  Bribery Act.


Because the Compliance system is complete and in continuum ​the public Prosecutor can overcome the probationary obstacle by the "Deferred ¨Prosecution Agreement (DPA). 


On this reality and these perspectives : Frison-Roche, M.-A., Nul n'est "sensé" ignorer la loi : faute d'orthographe commune, faute révélatrice d'une réalité forte, 2018. (article written in French)


This makes the work of Perelman about the argumentation technics more relevant, in particular the concept of "universal audience".


On the necessity to distinguish the will and the consent, s. Frison-Roche, M.-A., Remarques sur la distinction entre la volonté et le consentement en droit des contrats  (Remarks on the distinction between the will and the consent) &995 (article written in French).


On this notion of "position", s. Frison-Roche, M.-A., Entreprise, Regulator, Judge: think Compliance by these three characters, 2018.


That is why Responsibility is the way  Law responds to Globalisation, whose Digital is a synonym. V. Frison-Roche, M.A., Globablization from the point of view of Law, 2017.


On the link between Regulation and Supervision, s.  Frison-Roche, M.-A. (dir.), Régulation, Supervision, Compliance, 2017.


In Law, it is possible to define the "power" as the one exercised without the holder having a personal purpose to serve or to justify accordingly the means used with regard to that purpose. In this, Law is opposed to pure force. The "Power " is by definition a force that a person holds to fulfill a mission in relation to a goal. This implies a responsibility, in ex post and in ex ante, for the means to be limited and oriented towards a goal to which the person must strive.

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