Users of the sites are also data controllers with legal
obligations when they are posting on behalf of a club, society or
company, the opinion said.
The committee of Europe's data protection regulators, the
Article 29 Working Party, has published its opinion on the legal
status of social networking operators such as Facebook and
MySpace.
It has said that the sites cannot escape their legal obligations
just because content on them is often produced and posted by
users.
"SNS [Social Network Service] providers are data controllers
under the Data Protection Directive," it said. "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). SNS providers also determine the use that may be made
of user data for advertising and marketing purposes – including
advertising provided by third parties."
Being a data controller under data protection legislation brings
with it greater legal responsibilities than being a data processor.
The opinion said that social networking companies count as data
controllers under EU law "even when their headquarters are outside
of the [European Economic Area]".
The opinion said that users of social networking sites could
also attract the same legal obligations, but only if they were
acting on behalf of a company, association or in pursuit of
commercial, political or charitable goals.
The opinion also outlines the obligations of people who count as
data processors. They must be clear about their identity, must
offer privacy-friendly default settings to any service they offer,
should provide users with privacy warnings and should give warnings
to users about the potential privacy implications of their
actions.
According to privacy law expert William Malcolm the opinion
offers clarity for companies and users, but should not contain
surprises for followers of data protection law.
"This finally puts to bed the argument that social networking
sites might not be data controllers and therefore might not be
subject to the Data Protection Directive and its local implementing
legislation," he said. "This restates some of the previously
defined positions in relation to privacy issues affecting social
networking sites."
The opinion makes it clear that users of social networking sites
have no legal obligations as data controllers as long as the use is
purely personal.
"The Directive does not impose the duties of a data controller
on an individual who processes personal data 'in the course of a
purely personal or household activity'," it said, citing the
'household exemption' to the provisions of the Directive.
Individuals will have those responsibilities if their use
extends beyond the personal, it said, quoting EU Information
Society Commissioner Viviane Reding's view that use is shifting
from "web 2.0 for fun [to] web 2.0 for productivity and
services".
"The activities of some SNS users may extend beyond a purely
personal or household activity, for example when the SNS (social
networking site) is used as a collaboration platform for an
association or a company," said the opinion. "If an SNS user acts
on behalf of a company or association, or uses the SNS mainly as a
platform to advance commercial, political or charitable goals, the
exception does not apply. Here, the user assumes the full
responsibilities of a data controller who is disclosing personal
data to another data controller (SNS) and to third parties."
Disclaimer: We hope you find OUT-LAW’s content useful. It’s prepared by the lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please
contact us. See also: our
full disclaimer
