After the settlement approved by the US District Court of Northern California obliging Facebook to pay $20 million for putting users’ names and faces in “Sponsored Story” ads without their permission and without paying them, the issue on the compliance with applicable privacy laws of other direct marketing practices on social media has become more and more prominent.
In the case referred above, the US District court found that 150 million Facebook users had their names and/or likeness misappropriated to promote products and services through Facebook’s sponsored stories program. However, interestingly the court also held that
“Regardless of the degree of benefit to Facebook, however, plaintiffs faced a substantial burden in showing they were injured by the Sponsored Stories”.
The above mentioned statement would have had interesting implications before Italian courts. Indeed, Italian data protection law provides that whoever causes damages because of the processing of personal data is obliged to recover such damages unless it proves to have put in place all the measures aimed at avoiding such damages i.e. the burden of proof of having implemented everything necessary to prevent the damages will be on the breaching party. And this evidence is very difficult to provide in the case of a major privacy breach.
But the matter is even more interesting if we look at other social media features. Indeed, everyone has experienced some sponsored messages published on their Facebook timeline as if they were a message from one of their friends. On such matter, the current position of the Italian data protection authority (DPA) is that these activities are subject to privacy regulations and therefore would require the prior opt-in from the user that shall be provided beforehand with a privacy information notice listing all the information required by applicable laws. And the same rule applies according to the DPA to advertising messages sent through Skype, WhatsApp and Messanger.
Also the DPA held that the collection of data on social media relating to both the holder of open profiles and his friends and the contacts and information available on smartphones that might be used for profiling marketing practices is not compliant with applicable privacy laws. Such practice is even deemed by the DPA even more dangerous if the data are aggregated with data from other sources to create the so called “big data”.
As to marketing practices directed to Facebook FANs of a page the DPA held that they would be illegal unless a prior privacy informed consent compliant with the requirements of the Italian Privacy Code is obtained. On the contrary, in relation to marketing communications sent via Twitter or to the members of a Facebook group to the followers of a brand, a product or a service, the DPA held that they are lawful as the functioning itself of the social media implies the user’s consent to receive marketing communications, but when the user either quits the group or stops following a Twitter account or objects in other ways to the delivery of further marketing communications, no marketing message should be sent anymore.
It will be interesting to see whether the above position of the DPA will have implications on social media operations especially after the potential implementation of the new EU Privacy Directive that might make non-EU entities subject to the privacy laws of the country where their European users are located.