By Jan Dhont

EU extends privacy on social networking sites

On June 12, 2009, the Article 29 Data Protection Working Party (WP) adopted its Opinion 5/2009 on social networking (Opinion). In the Opinion, the WP specifies data protection requirements applicable to social networking sites.

According to the WP, the EU data protection legislation applies to the activities of providers of social networking services (SNS), even if their headquarters are located outside the European Economic Area (EEA). Although debated, the WP feels that if cookies (or other applications) are placed on a Web site visitor’s computer in an EEA Member State, such visitor’s computer qualifies as automated equipment, which triggers the application of the EU and national data protection legislation of the Member State in question.

For SNS providers to avoid clashes with European regulators, they will need to take a number of measures to ensure compliance with the WP guidelines and recommendations. These are as follows:

• To reduce the risk of unlawful processing of personal data by third parties, SNS providers should offer privacy-friendly default settings which allow users to freely and specifically consent to any access to their profile’s content that is beyond their self-selected contacts. Restricted access profiles should not be discoverable by internal search engines (i.e. prohibition to provide for searches by parameters such as age and location) and decisions by the user to extend access to his/her profile’s content may not be given implicitly.
• In relation to information uploaded by users, the WP recommends that SNS (i) provide adequate warnings about the privacy risks involved, and (ii) require users to obtain individuals’ consent to upload pictures or other personal information. To that end, tagging management tools could be introduced, e.g. by making available areas in a personal profile to indicate the presence of a user’s name in tagged images or videos waiting for consent, or by setting expiration times for tags that have not received consent from the tagged individual.
• Publication of sensitive personal information (relating to race, religion, political views, health, etc.) is subject to the explicit consent from the data subject. In some EU Member States, images are considered to constitute sensitive personal information since they may be used to distinguish between racial/ethnic origins or to deduce religious beliefs or health data. The WP does not consider images on the Internet to constitute sensitive personal information per se, unless they are clearly used to reveal sensitive information about individuals. As facial recognition technologies improve, however, publication of images on the Internet may raise increasing privacy concerns.
• SNS providers should delete accounts that have been inactive for long periods, and discard users’ personal information after they delete their accounts. Similarly, information deleted by a user when updating his/her account may not be retained.
• Some SNS providers allow their users to send invitations to third parties. The WP considers that the opt-in restrictions on the use of electronic mail for the purposes of direct marketing do not apply here, provided that the invitation sent by the user is of a personal nature. In order to avoid said restrictions, an SNS provider must comply with the following criteria:

       1. no incentive is given to users to send invitations;
       2. the provider does not select the recipients of the message (i.e. the practice by some SNS providers to send invitations indiscriminately to the entire address book of a user is not allowed);
       3. the identity of the sending user must be clearly mentioned; and
       4. the sending user must know the full content of the message that will be sent on his behalf.

• Processing of information of non-members, contributed by users of the SNS (e.g. adding a name to a picture, rating a person) is permitted only for legitimate purposes. In practice, the WP considers that the creation of profiles of non-members through the collection and merging of personal information provided by SNS users not to be legitimate.
• SNS homepages should clearly refer to the existence of a “complaint handling office” set up by the SNS to adequately handle privacy complaints by both members and non-members.
• Finally, it should be noted that, according to the WP, SNS providers may require their members to provide identifying information without forcing such members to act under their real identity (and to allow the use of a pseudonym).

The full text of the Opinion can be retrieved at: http://ec.europa.eu/justice_ home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf

Jan Dhont is a partner at Lorenz Brussels. He may be reached at j.dhont@lorenz-law.com.