Facing Up To the Legal Issues of Facebook – Part 2

July 18, 2007

Our second instalment of ‘Facebook and the Law’ examines the ‘privacy’ of private messages, questions how legal it is to Facebook the ‘hottie’ who has just arrived for an interview and looks at legacy issues of posting photographs online.

 So just how ‘private’ are your private messages?

Facebook has recently updated it’s privacy policy to come into line with the formal requirements of EU privacy law, and as the site has expanded it’s features, the Privacy Policy and Terms of Use have expanded with it. Litigation is currently underway in America, where the courts are considering whether a person’s messages and wall posts can be accessed by attorneys in criminal cases. Until now Facebook’s private messages have operated in a grey area of the law, it being unclear whether they have the same legal status as emails, or instead have the higher degree of security one can claim with privately written letters. If it is found they are admissible as evidence, the myth that Facebook operates a ‘private’ system of communication will be irrevocably shattered. 

Is Employing Facebook legal?

We’ve also heard the scare stories about potential employers using Facebook to ‘check up’ on candidates for jobs, and indeed it’s not hard to imagine HR departments logging on to see if someone’s Facebook profile matches the CV before them. But is this allowed? Well it is mentionned in the Facebook Terms of Agreement that you may use the site “solely for your personal, non-commercial use”. The key word here is ‘commerical’, and whether the act of looking at the profile of a candidate is a ‘commercial’ practice. If it is found so, then any HR departments indulging in this practice could be breaching Facebook’s Terms of Use, and technically operating unlawfully. Again this is currently a grey area of the law – for example does the location of the computer used to access the profile matter? Even if it is illegal to use Facebook at work, what’s to stop HR personnel merely logging on at home or in an internet café? Afterall, the privacy policy states that We are not responsible for circumvention of any privacy settings or security measures contained on the site”. However, until litigation provides us with a precedent we can merely speculate on this point. 

Smile for the masses – your photos are fair game.

So just how private are all those embarrassing photographs you have tagged of yourself on Facebook? Well many an aspiring public figure or celebrity should be aware that the embarrassing photos of his/her drunken university days will be inevitably dug up by the tabloid press in the future, and here again, the myth that these photos are private should be taken with a pinch of salt. If a photo has been made widely available for people to see on Facebook, then the individuals concerned are unlikely to have any right of privacy in the picture, as it will have already been published to a potentially sizeable audience (potentially all of Facebook’s 20 million users). Effectively, your photos are in the public domain, and as such cannot be granted the title ‘private’. The rationale is this: If journalists do not know who the photographer or even the subject(s) of the picture are, but are still able to view the picture, it is hard to imagine how the picture could qualify as “private” in the eyes of the law. Of course, we are yet to see a case where Article 8 of the European Convention of Human Rights (the right to private life) is evoked in relation to a newspaper or website printing a photo from Facebook without the permission of the subjects, and so again a definitive answer to this question for UK users of the site has yet to be offered by the courts. 

If you have any questions about this post or any others, please do leave a comment or email us at prandcommsnetwork@gmail.com 

Both ‘Facebook and the Law’ contributions are from our resident legal expert who is very fond of his internet anonymity!

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