Businesses are increasingly using social networks and online forums for marketing, recruiting, customer service, branding and PR purposes. The UK privacy regulator, the Information Commissioner (ICO), has recently published new guidance on the use of social networking and online forums. This replaces its 2007 guidance on the subject and is a helpful reminder to companies of their data protection obligations when operating online in the UK.
The UK Data Protection Act 1998 (DPA) sets out an extensive data protection regime by imposing broad obligations on those who collect personal data, as well as conferring rights on individuals about whom data are collected. Broadly speaking, data controllers must ensure that personal data are processed in accordance with a number of “data protection principles” set out in Schedule 1 to the DPA, which require that:
- Data must be processed fairly and lawfully;
- Data must be obtained only for specified lawful purposes and not further processed in a manner which is incompatible with those purposes;
- Data must be adequate, relevant and not excessive in relation to the purposes for which it is processed;
- Data must be accurate and, where necessary, kept up to date;
- Data must not be kept for longer than is necessary;
- Data must be processed in accordance with the rights of data subjects;
- Appropriate technical and organizational security measures must be taken to prevent unauthorized or unlawful processing, accidental loss of or destruction or damage to, personal data; and
- Personal data must not be transferred outside the EEA unless the destination country ensures an adequate level of protection for the rights of the data subject in relation to the processing of personal data.
The DPA details certain circumstances where processing is exempt from these data protection principles.
The new guidance
The new guidance confirms that Section 36 of the DPA (which provides a domestic purposes exemption) does not cover: (i) an organization’s use of social networks and online forums, or (ii) an individual’s use of social networks/forums for non-domestic purposes (e.g., in connection with running a sole trader business).
Accordingly, organizations and businesses that use social media and online forums will have privacy compliance obligations under the DPA: (i) if they post personal data on their own or a third party’s website, (ii) if they download and use personal data from a third party’s website or (iii) if they run a website (e.g. a blog) which allows third parties to add comments or posts about living individuals and they are a data controller of that third-party content.
The ICO states that the DPA will apply even where an organization asks an employee to carry out processing via their own personal social media page (e.g., their Facebook or LinkedIn page, or a personal blog) for business purposes. This is because, in such circumstances, the employee will be acting on behalf of the organization, so the processing will be for the organization’s corporate purposes and not for domestic purposes. However, the ICO acknowledges that there are situations where the purpose of using a social network or online forum will not be particularly clear-cut. Some users of social media may use it for mixed purposes, e.g., not only for personal, family and recreational purposes, but also to promote business interests. The ICO states that in such circumstances, individuals will need to ensure that any posts that involve personal data and are not made for domestic purposes comply with the DPA.
Of course, the first issue that businesses will need to consider if running an online forum or social networking site is the extent to which they will be considered a data controller under the DPA. Section 1 of the DPA states that a “data controller” means “the person (who either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed”.
The ICO confirms that the operator of a social network or online forum will be a data controller in relation to any contact information or other personal data that the site operator processes about the users of such network or forum, and will need to comply with the DPA.
In relation to any personal data that is posted on the social network or online forum by third parties, the ICO acknowledges that the position is less clear-cut. For an illustration of a situation where an operator would be considered a data controller in respect of third-party posts, the ICO refers to the 2011 case of The Law Society and Ors v Rick Kordowski EWHC 3185 (QB). In this case, Mr Kordowski ran a website, “Solicitors from Hell”, which encouraged the public to name and shame solicitors. Mr. Kordowski moderated posts made by users and charged fees for adding or removing posts. The court held that Mr Kordowski was a data controller under the DPA, and this was not disputed by either party. It was clear that Mr Kordowski had decided the purpose and manner in which the personal data was processed.
However, the ICO states that this does not mean that moderation is always an essential factor – even if the site operator does not carry out moderation in advance it could still be deemed to be a data controller. For example, if a site only allowed posts subject to terms and conditions which covered acceptable content, and posts could be removed if they breached those terms and conditions, then the operator would still be determining, to a certain extent, the purposes and manner in which personal data was processed and therefore would be deemed to be a data controller.
If a business is deemed to be a data controller of third-party posts, it will need to take reasonable steps to ensure that any personal data posted on its site are accurate and, where necessary, kept up-to-date in order to be compliant with the DPA. The ICO indicates that what amounts to “reasonable steps” will depend on the nature of the site and how active a role the operator takes in selecting, allowing or moderating content. For example, if (i) the vast majority of posts on a site are third-party posts, (ii) the volume of such posts is significant, (iii) posts are not moderated in advance and (iv) the site relies upon users complying with user policies and reporting problems to the site operator, the ICO acknowledges that it would not be reasonable to check every individual post for accuracy.
However, the ICO would consider “reasonable steps” to include:
- having clear and prominent policies for users about acceptable and non-acceptable posts;
- having clear and easy-to-find procedures through which users can dispute the accuracy of posts and ask for them to be removed; and
- responding to disputes about accuracy quickly, and having procedures which enable access
to content to be suspended until the dispute has been settled.
In addition, the ICO states that it expects site operators to have appropriate internal policies in place to deal with: (a) complaints from individuals who believe that their personal data may have been processed unfairly or unlawfully because of derogatory, threatening or abusive third-party posts, (b) disputes between individuals regarding the factual accuracy of posts; and (c) complaints about how the organization processes personal data provided by users.
Businesses should take note of the new guidance when using social networks and online forums. In addition, we suggest the following best practices to ensure privacy compliance.
- Understand the privacy terms that apply in respect of your use of third-party social networks and online forums.
- Understand the privacy risks associated with users posting third-party content and take appropriate steps to minimise such risks.
- Ensure that privacy policies comply with the DPA and:
- include a description of how user data will be processed/used;
- ensure that appropriate consents are obtained from users; and
- limit the company’s liability for privacy breaches by users.
- Don’t keep personal data that has been collected via social networks and online forums for longer than necessary.
- Obtain the consent of employees if any of their information will be posted to social networks or online forums.
- Create an appropriate social media policy, and provide training to employees to ensure employees understand their obligations in respect of their use of social networks and online forums including:
- setting out rules about accessing social media sites at work;
- making clear in what circumstances employees will represent the company and in what circumstances employees will act in a personal capacity and the rules relating to each (e.g., when acting in a personal capacity, employees should write in the first person (“I” as opposed to “we”) and should include a prominent disclaimer stating that the views expressed are their own, and not necessarily those of their company); and
- making clear to employees that they must not post personal information about colleagues on social networks and online forums.
- Put in place practical security measures for employees who have been approved to administrate/operate blogs and social media pages.
Other social media issues
Of course, in addition to data protection and privacy, there are a whole host of other issues that businesses need to consider as part of their social media strategy, such as:
- employees use of social media (monitoring, policies, training, liability, disclosure of confidential/proprietary information, etc.);
- use of social media in recruitment;
- crisis management and damage to company reputation;
- protection and infringement of intellectual property rights;
- advertising, marketing and promotion rules;
- consumer protection/unfair terms and trading rules;
- user-generated and third-party content (user terms and conditions, notice and takedown policies and procedures, disclosure of material connections with third-party bloggers, etc.);
- insurance; and
- applicable industry rules and regulations.
Lastly, where a UK organization is a global business, it will be important for the organization to ensure that individuals outside of the UK are not unintentionally targeted by any UK social media campaigns; or if they are targeted intentionally, it will be important for organizations to consider any specific rules that they will need to comply with in the applicable jurisdiction.