Social Network Sites: Data protection issues

Matthias Vierstraete

At a recent roundtable event hosted by theBrusselsoffice of Olswang LLP, Datonomy heard a range of perspectives on data protection issues in the context of social network sites (SNS).

Around 50 members of the Belgian Institute of In-House Counsel attended the event.

Iain Stansfield from Olwang’s Londonoffice set the scene and demonstrated through a number of practical examples what can go wrong for companies that are active on SNS – and further, what can go wrong when they are not active. Besides the risks, there are of course clear advantages of being social online and Iain discussed the need to find a balance between being social on the one hand and complying with the law on the other hand.

Christine De Keersmaeker from Olswang’sBrusselsoffice explained what social media do to your Intellectual Property, how they affect trade marks and copyrights and how trademark and copyright holders can deal with the threats of social media through prevention e.g. through creating awareness and policies, and how and why repression is not necessarily the right solution.

Patricia Cappuyns elaborated on the data protection and privacy issues related to SNS. She made in-house counsel aware of the obligations companies face when they are online on SNS. She explained how to apply the fundamental distinction between the data controller and the data processor to the different SNS scenarios, and concluded that companies will often be considered to be joint data controllers.

The ensuing discussion with in-house counsel revealed that most companies are not ready to meet their data protection obligations vis-à-vis virtual customers. Companies should have a policy in place with detailed guidelines, for example on how to comply with a request for access, rectification and deletion of data.

In order to prevent employees from misusing their company’s trade mark on SNS – or simply to prevent them from wasting their time – companies also feel the need to monitor their employees’ online activities. It is easy to see how the legitimate right of supervision, exercised through cyber-surveillance, may conflict with the fundamental right of privacy, which also applies in the workplace. Under Belgian law, a Collective Labour Agreement (N° 81) deals with this issue and sets the conditions in order for companies to legally monitor their employees. This agreement provides amongst others that employers are only allowed to monitor their employees’ electronic communication to the extent that this monitoring meets the principles of legitimacy, finality, proportionality and transparency.

For companies taking their chances on SNS it is therefore of key importance to put in place a legal step-by-step plan without hindering the main objective of the SNS effort, which is to present the company as a social online presence.

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