The changes in online technology and marketing devices have resulted in an explosive growth of social media in the past few years. This fuelled with an online global reach, easily accessible social media on the go and advert-funded business models, has resulted in a social media era set to stay. From a business perspective, social media is an important tool to inform and influence target markets, but consumers are no longer 'passive agents of consumption', but are contributors to the information provided by online service providers. This dynamic new market place raises significant legal questions, and challenges us to consider whether privacy can truly exist in this age of social media?
New technology has always challenged traditional concepts of privacy, but the influx in the use of social media in recent years has brought this threat to the forefront of both lawmaker's and consumer's minds. The protection of personal data and privacy has evolved to produce a mix bag framework, consisting of contractual agreements between consumer and company, technical features enforced by social media outlets, industry standards and legal regulation. With the legal framework protecting privacy in the European Union adopted in 1995 and the UK's Data Protection Act adopted in 1998, it's safe to say the law predates social networking as we know it. Facebook is now a global phenomenon with 1.2bn users,1 Twitter, launched in 2006, now has 230m users creating 500m tweets every day2 and LinkedIn now has approximately 277m users in over 200 countries and territories.3 For many, the purpose of social media is to provide a constant outlet to share personal information. However, among the UK general public, protecting personal information is considered to be the second most important social issue in front of education and preventing crime.4 A direct correlation exists between increased privacy expectations and the growth of social media.
Even with the likes of Blackberry and WhatsApp claiming that user's privacy is coded into their 'DNA', in recent years global concerns have been voiced about the extent to which individuals may be unwittingly putting their personal data at risk of exposure. Already this year, social networking giants LinkedIn and Twitter have announced vulnerabilities in their systems that have left personal information unprotected. Snapchat, an app designed with privacy in mind and described by Facebook CEO Mark Zuckerburg as a "super interesting privacy phenomenon", announced in January this year that 4.6m Snapchat accounts had been compromised after hackers exploited the app's 'Find Friends' function. Dating app Tinder has also suffered criticism for its people locating features after internet security researchers, 'Include Security', discovered the ability to find users' precise location for between 40 to 165 days to within 100 feet of their whereabouts. Perhaps the most widely reported social media verses privacy controversy this year is Facebook's US$19bn takeover of instant messaging app WhatsApp. Privacy groups teamed up to apply pressure on US regulators to put the brakes on the deal given Facebook's routine use of user information for advertising purposes, conflicting with WhatsApp's commitment to not collect user data for advertising revenue. However, it's not just the social media organisations themselves who are being criticised; Facebook was one of a number of major internet companies expressing concern this year over the US government's attitude to internet privacy. Google, Microsoft, Yahoo! and Twitter (to name a few) all expressed outrage at revelations that the US National Security Agency (NSA) may have accessed their services without permission to collect data on foreign citizens. An allegation defended by the NSA as a means of supporting "lawful and appropriate foreign intelligence operations".
That's not to say the US is not tackling privacy intrusions head on. The Federal Trade Commission (FTC) and state attorney generals have been the traditional protectors of online privacy for social media in the US, however, the FTC has moved beyond this position during the past few years to enforce privacy policies on social media sites. For example, in November 2011, the FTC claimed that Facebook lied to consumers by repeatedly stating that personal information would be kept private when it was in fact repeatedly made public. Consequently, Facebook agreed to a 20-year consent order protecting its member's privacy in more specific ways. The FTC also has similar 20-year consent orders in place with Twitter, MySpace and Google. More recently, despite Facebook's vow to operate WhatsApp as a separate company and to "honour its commitments to privacy and security", Facebook has been warned by the director of the FTC's Bureau of Consumer Protection to keep these promises or face the consequences of violating the FTC Act. While on legislative grounds, over 45 US jurisdictions have some version of a data breach notice law, all with the same basic function to ensure that if a company exposes or loses certain kinds of data relating to individuals, then the company must provide notice of the loss to the data subjects (and often to law enforcement and credit services). Further, with the concern about the disclosure of personal information on social media sites manifesting in the field of worksite protections, in 2013, 12 states passed laws specifically restricting employers from demanding access to their employees' social media sites when those sites are not fully public.
The EU, like its transatlantic partner, is also making attempts to better operate in today's fluid environment of both changing technology and changing privacy expectations. The European Parliament has now cemented the strong support previously given at committee level to the General Data Protection Regulation, intended to ensure more effective control of people over their personal data. The message sent by the European Parliament is unequivocal: this reform is a necessity, and now it is irreversible. The proposals update and modernise the principles enshrined in the 1995 Data Protection Directive, bringing them into the age of social media. The reform is set to put citizens back in control of their data (a pledge with added emphasis given the NSA surveillance scandal). Notably, citizens will be afforded a right to be forgotten, be granted easier access to their own personal data and their explicit consent will be required before organisations can process their data. However, the 'right to be forgotten' for example, is nuanced and is subject to a number of caveats, such as where it would conflict with another person's freedom of expression. Likewise, implementing a 'right to be forgotten' on the internet where many of the large internet companies are based in the US and protected by the right to freedom of speech and freedom of the press may prove difficult. Consequently, how these privacy promises will be applied in practice remains to be seen.
The UK Information Commissioner's Office (ICO) has published general guidance on online safety for users of social media and has its very own social media5 policy to manage its "corporate social media presence across various social media platforms".6 At common law, Justice Tugendhat has confirmed that misuse of personal information is on its own, a distinct tort.7 A group of UK Google users called 'Safari Users Against Google's Secret Tracking' claimed that the tracking and collation of information about their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998. Justice Tugendhat acknowledged that there was no general 'tort of invasion of privacy', however, he cited Lord Nicholls in Campbell v MGN Ltd  UKHL 22 to the effect that while the origin of the court's protection against the wrongful use of private information lay in the equitable action of breach of confidence based on an initial confidential relationship, the "essence of the tort is better now encapsulated as misuse of private information". He went on to identify a number of cases in which misuse of confidential information had been referred to as a 'tort'. In particular, he cited Lord Nicholls as authority for determining that the misuse of confidential information encompasses two distinct causes of action protecting two different interests – namely "privacy" and "secret information".8 Significantly, he therefore concluded that there was a distinct 'tort of misuse of private information'. The significance of this judgment lies partly in the chance that Google will be found liable at the substantive proceedings which would clearly be a landmark case for internet privacy. The definition of browsing data as personal and private information is in particular, likely to prove a serious issue at full hearing. However, it also represents a judge-led creation of something approaching a privacy cause of action and therefore a significant step towards the creation of a distinct common law action for misuse of personal information. In this event, parliament will no doubt be under pressure to consider what the appropriate boundaries for the protection of privacy when using social media should be.
With the above in mind a wave of privacy focused social media outlets are set to appear. To name but a few, Omlet, a privacy focused chat app has recently been created and launched by Stanford University, advertised as the 'first open chat platform that lets users own and manage their data'. MyApollo claims to be the world's first social network that doesn't store its users' data on its servers and has big plans to eventually extend its capabilities beyond those offered by Facebook. Snapchat alike 'Confide' is an app allowing users to send self-destructing messages to each other. In an era when global communication at an instant is an expectation of the average internet user, social media is only set to expand, which in turn means important legal issues surrounding the protection of privacy will continue to leave legislators and regulators worldwide performing a fine balancing act.
Originally published in www.intellectualpropertymagazine.com
1 Facebook Q3 2013 Earnings Release.
2 Final Twitter Prospectus, November 2013.
3 LinkedIn Q4 2013 Earnings Release.
4 The Information Commissioner's Annual Track 2013.
6 Social Media Policy, November 2013.
7 Vidal Hall and Ors v Google Inc  EWHC 12 (QB).
8. OBG Ltd v Allan and Douglas v Hello  UKHL 21.
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