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Rating sites like ratemyprofessor.com are big business in the US and beginning to invade the EU. But do they invade the privacy of those rated, and should the law encourage or restrict them?

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  • Iwantgreatcare.org had libel threats but still seems to be up – williseemytutor.com was taken down. But it was actually drawn from public info! With site adding own’s errors and libels! So not really libel treats against UGC at all – But he acknowledged that the site was in its "testing phase" and admitted that it should contain more caveats about the data. The website makes clear that staff-to-student ratios supplied are for the university as a whole - not individual subjects - but it still offers damning judgments. A nationwide search of law departments, for example, places the universities of Edge Hill and Luton (which became Bedfordshire University at the beginning of this academic year) at the bottom of the pile. Students contemplating studying law at Bedfordshire are told: "This university is rated Shocking! as (sic) you should consider going somewhere else." And those considering law at Edge Hill are told: "This university is rated Rubbish as it looks like there is not a chance in hell of ever seeing your lecturers outside of lectures because they may be horrendously over allocated." Would an FB profile or reply be “literary”? I doubt it but more so than a rating site? Are any UGC sites “jnlistic”. Blog sites yes (Art 29 has agreed on this).
  • ratemyMD.com let me go in, rate a Sheffield UK GP I’d never see and displayed it – no registration, no email given , nothing!
  • We only noticed in UK no immunity under art 14 for DPD when trying to work out how Italy could hold Google/YT responsible for a video which invaded privacy of a Down’s syndrome boy. ! Roommates - Fair Housing Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157 (9th Cir. 2008) ( en banc ). [18] The Ninth Circuit Court of Appeals rejected immunity for the Roommates.com roommate matching service for claims brought under the federal Fair Housing Act [19] and California housing discrimination laws [20] . The court concluded that the manner in which the service elicited information from users concerning their roommate preferences (by having dropdowns specifying gender, presence of children, and sexual orientation), and the manner in which it utilized that information in generating roommate matches (by eliminating profiles that did not match user specifications), the matching service created or developed the information claimed to violate the FHA, and thus was responsible for it as an "information content provider." The court upheld immunity for the descriptions posted by users in the “Additional Comments” section because these were entirely created by users. ((re liable for set form housing ads being discriminatory to eg black prospective tenants) But such liability resisted in various CraigsList cases, where short user ads listed. Seems to me like rating sites nearer the former..
  • Guardian “ "British professors beware!" RateMyProfessor.com is soliciting feedback from students in the UK.” april 2006
  • Re point 3 - (The “PR society” problem – cf Firsht v Raphael – gossip columns , outing sites, fan sites ? ) Seems fair enough you can take down your own photo on a UGC site – or its tagging – but what happens to SNSs when in name of privacy I can stop anyone even discussing me? And are there public intersts? Rt to know? Political dissent? More exception for these built into libel law historically than DP law ??
  • Ratemylegalrisknew

    1. 1. LILIAN EDWARDS AND ANDREAS RÜHMKORF UNIVERSITY OF SHEFFIELD [email_address] [email_address] BILETA, VIENNA, MARCH 2010 Ratemylegalrisk.com ?: legal issues around online rating sites
    2. 2. Types of rating websites <ul><li>Closed-rating-sites open-rating-sites </li></ul><ul><li>Product ratings ratings of individuals </li></ul><ul><li>1. Product ratings </li></ul><ul><li>2. Rating websites related to individuals </li></ul><ul><li>Rating of services (related to performance and ability) </li></ul><ul><li>Rating of character/personality </li></ul><ul><li>A mixture of the two </li></ul>
    3. 3. Rating of services: qype.com (Germany)
    4. 4. Rating of character: Dontdatehimgirl.com
    5. 5. A mixture of the two: Ratemyteachers.com (USA)
    6. 6. Ratemylecturer.com (UK)
    7. 7. Spickmich.de (Germany)
    8. 8. The “spickmich.de“ decision <ul><li>The teacher-claimant filed for deletion of her personal data ( sec 35 (2) 2 Nr. 1 BDSG) as well as for injunctive relief (secs 823 (2), 1004 BDSG analogous with sec 4 (1) BDSG) against the internet portal operator to stop publishing her personal data </li></ul><ul><li>Both claims were rejected </li></ul><ul><li>The ruling was primarily based on an application of provisions of the German Federal Data Protection Act; expressions of opinion are personal data; but no media privilege applied </li></ul><ul><li>The Court held that the teacher does not have a legitimate interest in excluding the collection, storage or modification (sec 29). The collection and storage was therefore admissible. </li></ul>
    9. 9. The “spickmich.de“ decision <ul><li>The Court interpreted &quot;legitimate interest” by balancing the basic (human) rights of freedom of expression and the right to privacy or informational self-determination due to the indirect effect of basic rights in private law </li></ul><ul><li>Differentiation between the right to informational self-determination as to the sphere affected (private sphere, social sphere) </li></ul><ul><li>Section 29 (2) Transfer of the data admissible if 1) the third party to whom the data are transferred credibly proves a justified interest in knowledge of the data or 2) there is no reason to assume that the data subject has a legitimate interest in his data being excluded from transfer. </li></ul>
    10. 10. Comments on spickmich.de decision <ul><li>Only the first decision regarding one particular rating website </li></ul><ul><li>Significance of the judgment: </li></ul><ul><li>1. Rating portals may be allowed to use personal data without the consent of the persons affected </li></ul><ul><li>2. Expressions of opinion and ratings “which refer to a defined or definable person affected” are subject to the Federal Data Protection Act </li></ul><ul><li>It is likely that the legality of other rating sites depends on the characteristics which are rated (sensitive personal data would need explicit consent) and on the group rated (e.g. entrepreneur, employee) </li></ul><ul><li>Spickmich.de has put several restrictions in place to limit access </li></ul>
    11. 11. note2be.com (France) <ul><li>Teacher rating website note2be.com </li></ul><ul><li>Tribunal de Grande Instance de Paris (TGI) issued an injunction against the rating website to delete all names of teachers within two days with a penalty of 1.000 Euros per day in the event of noncompliance </li></ul><ul><li>This judgment was based on the argument that the website would endanger the functioning of the educational system </li></ul><ul><li>The French data protection authority (CNIL) concluded that the website would breach French data protection laws </li></ul>
    12. 12. Beyond the German case: UK, EU and US perspectives <ul><li>German and French cases involve: </li></ul><ul><ul><li>Website being sued, not rater – remedy of DS to take down ratings, plus prevent further ratings being added </li></ul></ul><ul><ul><li>Data protection law </li></ul></ul><ul><li>Alternative strategies: </li></ul><ul><ul><li>Sue rater, not site? </li></ul></ul><ul><ul><li>Sue for libel not privacy? (eg williseemytutor.com). Approp remedy for vindicating reputation – right of correction? Damages! </li></ul></ul><ul><ul><li>Are “opinions” personal data in UK? Yes – s 1(1) DPA “ includes any expression of opinion about individual” – intended to cover eg employer’s assessments affecting promotion (Carey) (Not DPD wide) </li></ul></ul><ul><ul><li>Means DS consent necessary to publish? Mitigated by defences - journalism rejected in German case; “literary or artistic”? (s 32 DPA); no “fair comment”. Also “legitimate purpose of DC”, but trumped by privacy in German case. </li></ul></ul>
    13. 13. Libel/defamation: rater liability <ul><li>Libel unlike privacy requires falsehood for remedy – “opinions” may not be caught - dodgy </li></ul><ul><li>English courts have tried to restrict growth in libel suits re UGC as “mere vulgar abuse” or “fair comment” </li></ul><ul><ul><li>Smith v Adven; Sheffield Wednesday v Hargreaves </li></ul></ul><ul><ul><li>Typical comments: &quot;This guy sucks&quot; and &quot;Right up there with George W&quot;. “ (ratemyprofessor.com) </li></ul></ul><ul><li>Anonymity of rater? Norwich Pharmacal order for site to disclose possible – but not if no registration? (r atemyMD.com (US) cf. ratemylecturer.com (UK) ) and spickmich.de (Ge)) </li></ul>
    14. 14. Libel: site liability <ul><li>In principle, liable as host/publisher (?) </li></ul><ul><li>But liability of EU online hosts mitigated by art 14 ECD (in UK, ECD regs r 19). </li></ul><ul><li>Means easiest remedy by far will be to ask site for NTD (empirical evidence host site tends to take down, even where illegality questionable – Oxford, Multitali etc) </li></ul><ul><li>And NB – ECD art 1(5) – art 14 immunities don’t apply re DP liability (little known – why?) </li></ul><ul><li>Interesting comparison to USA: CDA s 230(c) appears to give site total immunity. even on notice ( Zeran v AOL , etc). Explains prominence of US sites. Although see Roommates / case cf Craigslist cases – room for doubt? </li></ul><ul><li>=>Just put your site in US? But libel jurisdiction in place of publication still applicable – DP also. </li></ul>
    15. 16. Policy issues <ul><li>Should we encourage such sites by reducing legal risk? Currently law not harmonised across EU & doubtful. Cf USA total immunity. US sites likely to pick up slack if EU sites restrained by fears of liability. </li></ul><ul><li>Pro such sites: consumer knowledge; freedom of speech; may incentivise improvements (cf league tables); is it invasion of “privacy” if about your job? </li></ul><ul><li>Anti: bad effects on those rated (promotion, tenure, bullying, stress, blackmail?); lack of accountability of those rating (cf student questionnaires); dignity of profession; non personal alternatives (rate school, dept, surgery). </li></ul>
    16. 17. Ways forward? <ul><li>Legal </li></ul><ul><ul><li>Extend immunity of ECD art 14 to DPD liability </li></ul></ul><ul><ul><li>Even NTD paradigm will make sites less useful (criticisms will go!). Allow total immunity as per USA, but with ADR/Ombudsman/ICO supervision system built in for speedy redress ? </li></ul></ul><ul><ul><li>Consider if DP law needs a balance not just between privacy and freedom of expression, but privacy and aggregate consumer/social gain? Cf Google Street View. </li></ul></ul><ul><li>“ Good practice” </li></ul><ul><ul><li>Make raters more accountable – demand either names or at least registration. Likely to destroy sites take up (and ad revenue) though. </li></ul></ul><ul><ul><li>Kite marks for sites with minimum “due process” safeguards eg only rated if 10 raters, etc (tho spickmich.de had most of these !) . </li></ul></ul><ul><li>Ethical </li></ul><ul><ul><li>Ban sites rating individuals, and promote non personal data sites eg as in US, making more info about professors assessments, etc, public, to allow “informed” choice. </li></ul></ul><ul><ul><li>General issue for web 2.0: Consider where balance of DS privacy, and public interest in speech/community, should lie in UGC, SNS world. </li></ul></ul>