Privacy&sns

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PRIVACY IN SOCIAL
NETWORK SITES
55th UIA Miami Congress - November 3rd, 2011
Comission on Right’s of the digital person

Marc Gallardo


SUMMARY

1. INTRODUCTION
2. CONCEPT & TYPES & MAIN THREATS
3. EU LEGAL FRAMEWORK
4. REVIEW OF SOME PRINCIPLES
5. LAW APPLICABLE
6. CONCLUSION


“CHANGE OF PARADIGM”


SOCIAL NETWORK
SITES (SNS)

EU: Information Society Services
Web 2.0 service.
SNS Subcategories:
Generalist or leisure SNS
Proffesional SNS


SNS OPERATE IN 3
PHASES:
(common threats)
1. Registration:
- opacity of private policies
- complicated legal or technical jargon
- collecting too much data
- no information about secondary uses
- privacy policies pre-set by default are
the less protective for users
- no age veriﬁcation systems

2. Usage:
- invisible data processing (cookies, ip...)
- user acting as a data controller
- weakness of sns security measures
- Rights on access, rectiﬁcation & refusal
- New secondary uses

3. Deletion:
- data not eliminated & “hotel california
effect” in a on line environment such as
SNS

ROLES INVOLVED
IN SNS
SNS Providers
Data Controller
Application
Providers
Data Subject
Users of SNS
Others


EU LEGAL
FRAMEWORK
(data protection perspective)
ECFR (Art. 8): DP as a “Fundamental Right”.
General Data Protection Directive (95/46/EC)
e-Privacy Directive (2002/58/EC as ammended by
Directive 2009/136/EC “Cookie Directive”)
Data Retention Directive (2006/24/EC)
Electronic Commerce Directive (2000/31/EC)
National laws implementing the said Directives.


EU GENERAL BASIC RULES
FOR SNS PROVIDERS
Register personal data files before DP Authorities
Inform users, inter alia, on their identity and purposes for
which they process personal data
Process data according with data quality principles
Process data under a legal ground (e.g. consent)
Adopt technical and organisational mesures to ensure
security and confidentiality of the information
Guarantee exercise of users’ rights of access,
rectification, cancellation and object.


REVISING DATA PROTECTION
PRINCIPLES: CONSENT
REQUIREMENTS
Freely Given
Speciﬁc
WP187: Opinion 15/2011, 13.07.2011

Informed on the definition of consent

WP163: Opinion 5/2009, 12.06.2009 on
online social networking
Unambiguous
Express
¿Other legal grounds?


PRINCIPLES: CONSENT
REQUIREMENTS
Storage of cookies or similar devices and subsequent
use of any information will have to comply with art.
5(3) of e-Privacy Directive
Need for users’ informed prior consent
Consent by means of browser settings do not meet
the requirements of art. 5(3) specially because major
browsers allow all cookies as a default setting
Prior “opt-in” consent is more in line with art. 5(3)


PRINCIPLES: ¿USER OF AN
SNS AS DATA CONTROLLER?

When a SNS user publishes data concerning third
parties without their consent (video, picture, etc.)
Not acting in the course of a purely personal
activity (household exemption)
The ECJ Lindquist standard as a possible criterion
Decisions of Spanish Data Protection Agency
(AEPD) on unlawful treatment of data in SNS.


REVISING DATA
PROTECTION PRINCIPLES:
MINORS OF AGE
Particularly vulnerable group.
In Spain some speciﬁc rules apply to the treatment
of data affecting minors of age (art. 13 RD
1720/2007)
Recommendations issued by AEPD (since 2010)
International and EU iniciatives (Montevideo
Memorandum, Safer Internet Program and Self-
Regulation fostered by EU Commission)


APPLICABLE LAW

Facebook (California) Art. 4 Directive 95/46
(relevant connection)
Google+ (California)
Establishment
Linkedin (California) +
Activities
Twitter (California)
(or)
My Space (New York)
Instruments or Means


CONCLUSION

SNS poses serious risks for Privacy
Full compliance to current EU legislation is
required (EU based SNS & not EU based SNS
under certain circumstances)
Law revision + Self-Regulation Systems
Responsible and safe use


THANK YOU

www.alliantabogados.com


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