European Data Protection and Social Networking

Dr David Erdos
University of Cambridge

Outline
 Social Networking Sites (SNS) and SNS Content
 Potential DP concerns arising from SNS Content
 Potential DP responsibilities of SNS Users
 Potential DP responsibilities of SNS Providers
 Conclusions

Background: Social Networking Sites
 According to the A29 WP, SNS are:
 Private message and a homepage almost always provided.
 The centrality of the network per se may also differ.
 Given this, it might be better to think about SNS within a
broader category of “online forums” (ICO, 2013).
 The rise of ubiquitous and profitable SNS is a reality of Web 2.0.
 Nevertheless, platforms for social communication go back to the
early days of online technology (even before the Web).
“online communication platforms which enable individuals to
join or create networks of like-minded users.” (p. 4)

SNS and ʻContentʼ Personal Information
 SNS results in the processing of vast amounts of
personal information.
 Very broadly, information use may be divided into:
 ʻBackgroundʼ information used to manage essential site
services, personalize content, target adverts and sell as a
commodity.
 ʻContentʼ information including of third parties (3Ps)
published by SNS users and/or providers on the site
 Clearly there is an overlap between these two classes &
to an extent we may need to look at SNS roles as a whole
 However, we focus only on “content information”.

SNS ʻContentʼ Personal Info. and DP
 Use of personal information as SNS content has resulted
in a wide range of concerns potentially related to DP.
 Many concerns focus on 3P dissemination including:
 Invasion of privacy,
 Unwarranted denigration (incl. linked to discrimination),
 Spreading of inaccuracies,
 Loss of information control
 Dissemination of information which is excessive,
irrelevant etc. (or which becomes so over time)
 We will look at the potential responsibilities of two
key actors here: (a) SNS Users and (b) SNS Providers.

SNS Users as Controllers? Introduction
 SNS User activity generally falls within general
material scope of data protection (DP).
 However, is the household exemption engaged?
 SNS Users are generally natural persons.
 Processing is ʻon behalf ofʼ if not strictly ʻbyʼ them.
 What SNS activity is “purely personal or household”?
 Generally agreed can’t cover professional/commercial activity.
 Many Data Protection Authorities would confine to small-scale
dissemination, perhaps limited to friends and family or consent.
 However, other DPAs concerned about such an interpretation.

Common WP29 Position: Opinion 5/2009
“In most cases, users are considered to be data subjects”
“[I]f a user takes an informed decision to extend access beyond self-
selected “friends” data controller responsibilities come into force.”
“A high number of contacts could be an indication that the
household exemption does not apply and therefore that the user
would be considered a data controller.”
“The application of the household exemption is also constrained by
the need to guarantee the rights of third parties, particularly with
regard to sensitive data.”

ICO Position: SNS & Online Forum Guide (c. 2013)
“42. The ICO will not consider complaints made against individuals
who have posted personal data whilst acting in a personal capacity,
no matter how unfair, derogatory or distressing the posts may be.
This is because where an individual is posting for the purposes of
their personal, family[,] household or recreational purposes the
section 36 exemption will apply.
43. The ICO will consider complaints about posts made by
businesses, organisations, or individuals acting for non-domestic
purposes in the normal way, using a proportionate approach.”

Irish DPA Position in Facebook Audit (2011)
“Under Irish law where an individual uses Facebook for purely social
and personal purposes to interact with friends etc they are
considered to be doing so in a private capacity with no consequent
individual data controller responsibility. This so-called domestic
exemption means for instance that there are no fair processing
obligations that arise for an individual user when posting
information about other individuals on their Facebook page. The
Article 29 Working Party Opinion 5/2009 on online social
networking also recognised this distinction.” (p. 24)

CJEU: Core ruling in C-101/01 Lindqvist
 Articulated categorical rule that indeterminate
publication is outside the household exception.
 CJEU also suggested should apply narrow concept of
“private and family life” to exception as a whole.
The household exception must “be interpreted as relating only to
activities which are carried out in the course of private or family life
of individuals, which is clearly not the case with the processing of
personal data consisting in publication on the internet so that
those data are made accessible to an indefinite number of people.”
(at [47])

CJEU: Related ruling in C-212/13 Rynes
Facts: About householders’ CCTV overlooking public area outside
house. Disclosure only to police. Did the exemption apply?
Ruling: No
Reasoning:
“the exception provided for … must be narrowly construed.” (at [29])
“the processing of personal data comes within the exception … only
where it is carried out in the purely personal or household
setting of the person processing the data.” (at [31])

ICO: Response to Rynes (outside CCTV)
 Guidance on drones altered but no change otherwise.
 But practical, philosophical etc. obstacles to full acceptance by
ICO of thrust of CJEU case law here remain formidable.
“Clearly this is a significant judgment. We’ve previously considered
the domestic exemption to be quite broad, but the judgment suggests
a more narrower interpretation, which could have an effect beyond
surveillance cameras.
There’s work for us to do now. We are talking to the Ministry of
Justice about the effects on our UK law. We’ll be studying the
judgment in detail before deciding what steps we need to take …
Once we’ve done that, we’ll provide another update.”

CJEU: Further ruling in C-345/17 Buivids
 Fact that recording public officials performing public
duties did not change this (at [44]).
 Stressed again that exceptions must be “interpreted
strictly” (at [41])
[S]ince Mr Buivids published the video in question on a video
website [YouTube] on which users can send, watch and share
videos, without restricting access to that video, thereby permitting
access to personal data to an indefinite number of people, the
processing of personal data at issue … does not come within the
context of purely personal or household activities. (at [43]).

Household Exemption under GDPR
Article 2(2):
“This Regulation does not apply to the processing of personal data:
….
(c) by a natural persona in the course of a purely personal or household
activity”
Recital 18:
“This Regulation does not apply to the processing of personal data by a natural
person in the course of a purely personal or household activity and thus
with no connection to a professional or commercial activity. Personal or
household activities could include correspondence and the holding of
addresses, or social networking and online activity undertaken within the
context of such activities. However, this Regulation applies to controllers or
processors which provide the means for processing personal data for such
personal or household activities.”

SNS Users DP Responsibilities
 SNS users publishing 3P personal data could have duty to:
 Register with the ICO
 Provide notice to individuals (at least re direct collection)
 Gain consent re: many forms of ʻsensitiveʼ data
 Answer subject access requests
 Take steps to ensure accuracy, non-excessiveness etc.
 But as regards some/all of this, it could be argued that:
 If non-intrusive may fall within GDPR household exemption
 May fall within special purposes (cf. art. 85(2) GDPR), or may
 Require other explicit rights balancing (cf. art. 85(1)).

Lindqvist & Buivids on Rights Balance
C-101/01 Lindqvist (2003):
“Mrs Lindqvist’s freedom of expression in her work preparing people for
Communion and her freedom to carry out activities contributing to religious life
have to be weighed against the protection of the private life of the individuals
about whom Mrs Lindqvist has placed data her internet site” (at [86])
C-345/17 Buivids (2019)
“ʻ[J]ournalistic activitiesʼ are those which have as their purpose the disclosure
to the public of information, opinions or ideas” (at [53])
“[I]f [that] should transpire … it is for the referring court to determine whether
the exemptions or derogations provided for … are necessary in order to reconcile
the right to privacy with the rules governing freedom of expression, and whether
those exemptions and derogations are applied only in so far as is strictly
necessary.” (at [68]).

SNS Providers as Controllers: Introduction
 Clearly  re: ʻbackgroundʼ personal information.
 Bit more complex re: ʻcontentʼ personal information:
 Are SNS Providers only processors of personal information?
 If they exercise control, is this only partial?
 If so, does this limit their duties as data controllers?
“controller” = anyone who “alone or jointly with others determines the
purposes and means of the processing of personal data”

Irish DPA: Position in Facebook Audit (2011)
“Complaint 18 – Obligations as Processor from “Europe-v-Facebook”
contended that Facebook’s operation as a processor is at variance
with both Irish Data Protection legislation and Directive 95/46/EC.
The complaint states that Facebook and its users can only process
data legally if Facebook clearly defines, in relation to each piece of
data held, who is the data controller and who is the data processor.
This issue is deal with in the introduction to this Report by reference
to what is termed the household or domestic exemption and the
responsibilities of a business for instance when using the site.”
(pp. 38-39)

Common WP 29 Position in Opinion 5/2009
“SNS providers are data controllers … They provide the means for the
processing of user data and provide all the “basic” services related to
user management (e.g. registration and deletion of accounts).” (p. 5)
Should establish clearly visible complaints handling office for DP &
privacy issues/complaints for members & non-members. (p. 11)
Recommends as regards the upload of information that:
• Provide adequate warnings about privacy risks and fact may
impinge of privacy and DP rights.
• “SNS user should be advised by SNS that if they wish to upload
pictures or information about others individuals, this should be
done with the individual’s consent.” (p. 7)

ICO Position: SNS & Online Forum Guide (c. 2013)
“26. The first issue a person or organisation that runs a social
networking site or other online forum needs to consider is the extent
to which they are a data controller. …
…
31. … If the site only allows posts subject to terms and conditions
which cover acceptable content, and if it can remove posts which
breach its policies on such matters, then it will still, to some extent,
be determining the purposes and manner in personal data is
processed. It will therefore be a data controller.”

ICO Position Continued:
 Focus on policies and ex post control can be seen as
reflecting (i) idea of a granular “controller” and/or (ii) need
for a balance with other fundamental rights.
“40. We would expect a person or organisation running a social
networking site or online forum to have policies in place that are
sufficient to deal with:
• Complaints from people who believe that their personal data
may have been processed unfairly or unlawfully because they
have been the subject of derogatory, threatening or abusive
online postings by third parties;
• Disputes between individuals about the factual accuracy of
posts”

e-Commerce Directive (ECD) Host Shield
 Definition (art. 14): Storing information at request of recipient
and where recipient not acting under their authority or control.
 General liability shield (art. 14(1)): Exemption if:
 No actual knowledge of illegality (or re: damages, awareness of facts
or circumstances from which illegality apparent).
 Upon obtaining knowledge/awareness, act expeditiously to
remove/disable access.
 Injunction possibility remains (art. 14(3): May be administrative
&/or court injunction – terminating or preventative.
 General monitoring prohibition (art. 15): No general obligation to
monitor for illegality (but may be specified monitoring)

ECD: Special Aspects Relevant to DP?
 Duty of care possibility (recital 48):
“This Directive does not affect the possibility for Member States of requiring
service providers, who host information provided by recipients of their service,
to applying duties of care, which can reasonably be expected from them and
which are specified by national law, in order to detect and prevent certain
types of illegal activity.”
 Data protection clause (art. 1(5)):
 Excludes “questions relating to information society services covered
by” EU data protection framework.
 GDPR text maintains with this but adds that it is “without prejudice”
to Directive 2000/31 and intermediary shields (GPDR, art. 2 (4)).

CG v Facebook Ireland (2016) (NICA)
Facts: Various postings related to a convicted sex
offender (CG) including information on his home
address.
Held: Facebook liable but only for failure to promptly
take down material specifically flagged up to it.
Reasoning: Facebook was a controller of this data. But
also a “host” within ECD 2000/31 (art. 14), data protection
clause (art. 1(5)(b) not true exemption and “no general
obligation to monitor” (art. 15) interpreted broadly.

AY v Facebook Ireland (2016) (NIHC)
Facts: Repeated publication of naked photos of plaintiff
when aged 14 including on “shame page”.
Held: Facebook might be liable to filter via PhotoDNA.
Reasoning: Even if ECD host shield applied “the trial judge
might conclude, having regard to existing technology, that
blocking could be achieved without impermissible
monitoring”. (But blocking “shame page” would require
general monitoring).
N.B.: ICO looked likely to intervene; Facebook then settled.

Conclusions
 SNS Content can raise significant DP/privacy concerns,
whilst also engaging freedom of expression.
 SNS Users – Some may benefit from domestic exemption
but many are full controllers & outside special expression.
 Implies wide-ranging DP responsibilities but some DPAs
including ICO unwilling to accept this.
 SNS Providers also exert some control over SNS Content.
 Many DPAs increasing hold that this results in at least ex
post DP responsibilities.
 Courts seem to be moving in similar direction but see e-
Commerce Directive as limiting scope of duties here.

European Data Protection and Social Networking

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