Last month, the UK Information Commissioner’s Office (UK ICO) published guidance on the application of the Data Protection Act 1998 (UK DPA) to social networking sites and online forums. Although the guidance is specific to UK privacy legislation, the guidance is worth reading by a broader international audience. In particular, the guidance may be of interest to operators of social networking and online forum sites in Canada, given the similarity of some of the underlying principles in Canadian privacy legislation.
The overarching theme of the UK ICO guidance is that organizations must assess the extent to which the UK DPA applies to their activities. In most cases, it will be uncontroversial that the collection and use of subscription data falls within the provisions of the UK DPA. However, organizations must also consider whether the content of posts by users will fall within the UK DPA and the extent of the organization’s responsibilities for the accuracy of that content.
Social Media Activities Attract Obligations
The UK DPA does not apply to individuals who process personal information for their own personal purposes. This is referred to as the “domestic purposes” exemption. However, the UK ICO states that the domestic purposes exemption is not available to organizations engaged in social media activities. The fact that the social media activity is conducted by an individual employee makes no difference if the employee is engaged in the activity on behalf of the organization.
In view of the UK ICO’s guidance, organizations will have obligations in three broad situations:
- if the organization runs a website which allows third parties to add comments or posts about living individuals, and they are a data controller for the website content;
- if the organization or its employees (acting in the course of their duties or with encouragement of the organization) post personal information on the organization’s own website or a third-party’s website; and
- if the organization or its employees (acting in the course of their duties or with the encouragement of the organization) downloads and uses personal information from a third-party website.
As an aside, the UK ICO stated that it considers “it poor practice for an organisation to encourage or allow employees to use their own personal networking pages for corporate purposes.”
Data Controller of User Comments and Posts
One of the most difficult areas is determining the extent to which privacy laws apply to the host of social networking sites and forums in respect of comments and posts by the users of those sites. The obligations of a host under the UK DPA materially expand if the host is a “data controller” of the factual information in the posts.
Whether the host is a “data controller” depends, in part, on the degree to which the host determines the purposes for which and the manner in which the information on the site are processed. Thus, an actively moderated site could make the host a “data controller”. However, the UK ICO also suggests that a host engaged in less intensive moderation could be a “data controller”. For example, a free site with an acceptable use policy reserving to the host the right and ability to remove posts could still result in the host being a data controller.
If the host is a data controller, the UK ICO states that the organization must “take reasonable steps to check the accuracy of any personal data that is posted on its site by third parties and is presented as a ‘matter of fact’.” What constitutes reasonable steps will vary with the type of networking site or forum. The UK ICO states it may be sufficient in some cases to:
- maintain clear and prominent acceptable use policies;
- maintain clear and easy to find procedures to dispute the accuracy of posts and to request removal; and
- maintain a procedure to respond to disputes quickly, including procedures to remove posts, suspend posts while the dispute is resolved, or annotate them as disputed.
Distinguishing between a “fact”, which must be accurate, and an “opinion” may not always be easy.
Parallels and Differences in Canada
Although Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) is materially different from the UK DPA, there are also some important parallels.
Subsection 4(2) of PIPEDA contains an exemption for the collection, use and disclosure of personal information by an individual solely for personal or domestic purposes. However, like the UK DPA, PIPEDA applies to organizations that collect, use and disclose personal information in the course of commercial activities. The fact that those activities are carried out through an individual employee using a personal account may not on its own to exempt the activities from the scope of PIPEDA depending on the degree of involvement of the organization.
PIPEDA does not expressly use the concept of a “data controller”. However, PIPEDA does require an organization to be accountable for personal information under its “control”. If personal information is under the “control” of the organization, it must be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used. Furthermore, an individual must be able to challenge the accuracy and completeness of the information and have it amended as appropriate. To this end, the organization must have procedures to receive and respond to complaints regarding the accuracy and completeness of the information.
Determining whether information is under the “control” of an organization is equally tricky in Canada. However, an organization may be considered to “control” information if it has the right to determine whether and under what conditions it is used or produced. The UK ICO’s guidance is of interest, therefore, in assessing how one might interpret the accountability requirements under PIPEDA or distinguish them from the UK DPA.