In a recent Independent on Sunday article David Randall and Victoria Richards paint a gloomy picture of on-line privacy, highlighting a number of incidents in which employers and educators have used online social networks to gather information about their current and prospective employees and students.
Whilst those who brag about engaging in criminal activities on social networks can legitimately expect to have the information they’ve shared come back to haunt them; should employers, recruiters and educators assume the same rights as the police or the security services?
The terms and conditions of social networks often restrict activity to personal use only.
“You understand that except for advertising programs offered by us on the Site (e.g., Facebook Flyers, Facebook Marketplace), the Service and the Site are available for your personal, non-commercial use only.”
Any employer using these networks to gather intelligence about an employee will be violating the terms of service by gathering personal data for commercial use.
Ownership of content is generally retained by the users of social networks.
“You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.”
In many cases media displayed in social networks are stored on separate hosting services with their own conditions and requirements, and have the additional protection of declaring Creative Commons licenses that explicitly state the media are for non-commercial use.
Employers who include text and images from social networks as evidence at an industrial tribunal will be violating the copyright of the very employees they are in conflict with. Employees who are unlikely to waive the unnegotiated (and presumably quite high) fees for the prejudicial use of their intellectual property.
Even where an image is marked as available for commercial use issues of privacy and model consent remain.
Employers and educators who violate privacy should be aware that they may also be violating contract law and copyright law. They should be unsurprised if they face legal consequences as a result, and should budget accordingly.
The question is, who will sue first:
- individuals protecting their privacy
- content owners protecting their intellectual property rights
- service providers protecting their users and their market share
- the Electronic Frontiers Foundation, because that’s what they do