Company A, which sells cosmetic products, had entrusted company B, a digital agency, with a support mission in digital strategy, particularly the management of social networks. Company A failed to pay an invoice within the allotted time, so Company B took a series of measures to call its customer’s attention:

1. posting of a message on Company A’s Facebook page indicating that the account was blocked “for non-payment of invoices”;
2. suspension of Company A’s social media accounts;
3. holding of access codes to said accounts.

A took B to the Strasbourg court of first instance, which ordered B i) to pay A 5,000 euros in damages and ii) deliver the social media access codes to A. B appealed with the Colmar Court of Appeal, which upheld decision (Colmar, 1re ch., Sect. A, May 26, 2021, n ° 19/02784).

Denigration

A claimed that the posting of the message mentioned above was disparaging. According to B, on the contrary, the message could not be qualified as denigration on the grounds, on the one hand, that the message was neutral, on the other hand, that the two companies are not competitors and, finally, that it did not derive any benefit from the publication of the information concerned. The defendant’s argument was swept aside by the court of appeal. :

“the existence of a competitive situation is not necessary for the qualification of behavior as disparagement. (Cour de cassation, com., November 4, 2020, appeal n ° 18-23.757) (…)

Finally, disparagement can be constituted even if the author of the message does not derive any benefit from it.

In the present case, the fact of indicating, on the Facebook page of A, that its account had been blocked because of the absence of payment of the bill, despite reminders, is likely to discredit A, even though this lack of payment was true and the terms used were purely factual”.

The court, therefore, concluded that the publication of such a message was wrongful.

Retention of access codes

Article 2286 of the French Civil Code states:

“Can take advantage of a right of retention on the property:

1 ° the person to whom the property has been delivered until payment of its claim;

2 ° the one whose unpaid debt results from the contract which obliges him to deliver it;

3 ° the person whose unpaid claim arose on the occasion of the possession of the property.

The right of retention is lost through voluntary relinquishment”.

The third refers to “the property” without distinction of nature, thus including tangible and intangible property: ubi lex indistinguishable nec nos distinguere debemus. The right of retention can therefore, in theory, be exercised by a creditor over an intangible asset such as a domain name, access codes or a website.

In the present case, the conditions allowing the exercise of the right of retention appeared to be met. B had exercised a right of retention on codes allowing access and administration of the accounts of certain social networks of A. However, the Strasbourg court of first instance ordered B to provide A with the access codes allowing the administration of social media accounts. This decision was upheld by the Colmar Court of Appeal.

The exercise of the right to retention can be formidable for the debtor subjected to it, as case law has constantly established its effectiveness and broadened its scope. However, like any other right, the right of retention is likely to degenerate into abuse. In the present case, it is plausible that the creditor has abused its right of retention by denigrating his debtor on the latter’s Facebook page.