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EC: 'Friends-only' natter not subject to 'right to be forgotten'

Chitchat not in draft new data protection law

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The operators of social networking sites, such as Facebook, would not be obliged to delete every piece of information about individuals that they host under proposed new EU 'right to be forgotten' laws, the European Commission has said.

The Commission said that the platforms would not have to delete information that users elect only to enable their 'friends' on the sites to access. The processing of that data would be outside the scope of the draft new data protection laws, it said, according to ZDNet.

Under the draft General Data Protection Regulation, published by the Commission in January, individuals will be given a qualified 'right to be forgotten' that will generally enable them to force organisations to delete personal data stored about them "without delay". Organisations that have made the data public will be liable for the data published by third parties and will be required to "take all reasonable steps, including technical measures" to inform them to delete the information.

Organisations will be able to oppose the deletion of information if they can show they have a right to publish the data under the fundamental principle of freedom of expression or if it is in the public interest for the data to remain in existence.

However, the draft Regulation contains a particular provision that exempts the rules laid out in the text from applying to "the processing of personal data ... by a natural person without any gainful interest in the course of its own exclusively personal or household activity". It is this exemption that would apply to some social network content, the Commission said.

"This is the case when, for example, privacy settings are configured so to give access only to 'friends'," the Commission said, according to the ZDNet report.

Kathryn Wynn, expert in data protection at Pinsent Masons, the law firm behind Out-Law.com, said that it would be hard to establish when social networks would be required to comply with the ‘right to be forgotten’ in every case, even if access to postings were set between just ‘friends’.

“In a physical sense the ‘household’ exemption applies to enable individuals to maintain a list of contacts, such as Christmas card lists and other personal, domestic collections of others’ details, which do not require the others’ consent,” Wynn said.

“In an online social network environment the exemption, applied strictly, would apply very narrowly. It would only relate to a proportionately small number of personal exchanges between users on social networking sites. If Facebook was able to glean an inherent benefit from processing postings, such as allowing advertisers to market products based on the interaction, then that processing would have to be considered within the scope of the draft Regulation. This would mean Facebook would generally be obliged to act to delete the information upon request”.

“The moment that social networks act as anything other than a mere host of content they are going to come within the scope of the Regulation. The high functionality of Facebook and the way users’ network of activity can lead to personalisation would mean it would be hard to know when user exchanges fall within the ‘household’ exemption,” Wynn said.

The Commission also said that only "pure hosting services" that "have no ownership and no responsibility" for content posted by internet users would not be expected to delete information under the proposed regime, according to ZDNet.

"Information services, including social networking and search engines, may exercise control on the content, conditions and means of processing, thereby acting as data controllers. If and when this is the case, clearly they have to respect related data protection obligations," the Commission said, according to the ZDNet report.

The Commission's comments contrast those made by Google privacy lawyer Peter Fleischer, who said last week said that search engines should only have to update search rankings and help facilitate easier, faster deletion of content rather than delete the material themselves under the proposed DP Regulation.

Copyright © 2012, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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