A recent Finding from the Office of the Privacy Commissioner of Canada contains a consideration of the meaning of “publicly available information”, particularly as it relates to social media profiles. This issue is particularly significant given a recent recommendation by the ETHI committee in its Report on PIPEDA reform. PIPEDA currently contains a very narrowly framed exception to the requirement of consent for “publicly available information”. ETHI had recommended amending the definition to make it “technologically neutral”. As I argued here, such a change would make it open-season for the collection, use and disclosure of social media profiles of Canadians.
The Finding, issued on June 12, 2018, came after multiple complaints were filed by Canadians about the practices of a New Zealand-based social media company, Profile Technology Ltd (PTL). The company had obtained Facebook user profile data from 2007 and 2008 under an agreement with Facebook. While their plan might have originally been to create a powerful search engine for Facebook, in 2011 they launched their own social media platform. They used the Facebook data to populate their platform with profiles. Individuals whose profiles were created on the site had the option of ‘claiming’ them. PTL also provided two avenues for individuals who wished to delete the profiles. If an email address had been part of the original data obtained from Facebook and was associated with the PTL profile, a user could log in using that email address and delete the account. If no email address was associated with the profile, the company required individuals to set up a helpdesk ticket and to provide copies of official photo identification. A number of the complainants to the OPC indicated that they were unwilling to share their photo IDs with a company that had already collected, used and disclosed their personal information without their consent.
The complainants’ concerns were not simply that their personal information had been taken and used to populate a new social media platform without their consent. They also felt harmed by the fact that the data used by PTL was from 2007-2008, and did not reflect any changes or choices they had since made. One complaint received by the OPC related to the fact that PTL had reproduced a group that had been created on Facebook, but that since had been deleted from Facebook. Within this group, allegations had been made about the complainant that he/she considered defamatory and bullying. The complainant objected to the fact that the group persisted on PTL and that the PTL platform did not permit changes to public groups and the behest of single individuals on the basis that they treated the group description “as part of the profile of every person who has joined that group, therefore modifying the group would be like modifying all of those people’s profiles and we cannot modify their profiles without their consent.” (at para 55)
It should be noted that although the data was initially obtained by PTL from Facebook under licence from Facebook, Facebook’s position was that PTL had used the data in violation of the licence terms. Facebook had commenced proceedings against PTL in 2013 which resulted in a settlement agreement. There was some back and forth over whether the terms of the agreement had been met, but no information was available regarding the ultimate resolution.
The Finding addresses a number of interesting issues. These include the jurisdiction of the OPC to consider this complaint about a New Zealand based company, the sufficiency of consent, and data retention limits. This post focuses only on the issue of whether social media profiles are “publicly available information” within the meaning of PIPEDA.
PTL argued that it was entitled to benefit from the “publicly available information” exception to the requirement for consent for collection and use of personal information because the Facebook profiles of the complainants were “publicly available information”. The OPC disagreed. It noted that the exception for “publicly available information”, found in ss. 7(1)(d) and 7(2)(c.1) of PIPEDA, is defined by regulation. The applicable provision is s. 1(e) of the Regulations Specifying Publicly Available Information, which requires that “the personal information must appear in a publication, the publication must be available to the public, and the personal information has to have been provided by the individual.”(at para 87) The OPC rejected PTL’s argument that “publication” included public Facebook profiles. In its view, the interpretation of “publicly available information” must be “in light of the scheme of the Act, its objects, and the intention of the legislature.” (at para 89) It opined that neither a Facebook profile nor a ‘group’ was a publication. It noted that the regulation makes it clear that “publicly available information” must receive a restrictive interpretation, and reflects “a recognition that information that may be in the public domain is still worthy of privacy protection.” (at para 90) The narrow interpretation of this exception to consent is consistent with the fact that PIPEDA has been found to be quasi-constitutional legislation.
In finding that the Facebook profile information was not publicly available information, the OPC considered that the profiles at issue “were created at a time when Facebook was relatively new and its policies were in flux.” (at para 92) Thus it would be difficult to determine that the intention of the individuals who created profiles at that time was to share them broadly and publicly. Further, at the time the profiles were created, they were indexable by search engines by default. In an earlier Finding, the OPC had determined that this default setting “would not have been consistent with users’ reasonable expectations and was not fully explained to users” (at para 92). In addition, the OPC noted that Facebook profiles were dynamic, and that their ‘owners’ could update or change them at will. In such circumstances, “treating a Facebook profile as a publication would be counter to the intention of the Act, undermining the control users otherwise maintain over their information at the source.” (at para 93) This is an interesting point, as it suggests that the dynamic nature of a person’s online profile prevents it from being considered a publication – it is more like an extension of a user’s personality or self-expression.
The OPC also noted that even though the profile information was public, to qualify for the exception it had to be contributed by the individual. This is not always the case with profile information – in some cases, for example, profiles will include photographs that contain the personal information of third parties.
This Finding, which is not a decision, and not binding on anyone, shows how the OPC interprets the “publicly available information” exception in its home statute. A few things are interesting to note:
· The OPC finds that social media profiles (in this case from Facebook) are different from “publications” in the sense that they are dynamic and reflect an individual’s changing self-expression
· Allowing the capture and re-use, without consent, of self-expression from a particular point in time, robs the individual not only of control of their personal information by of control over how they present themselves to the public. This too makes profile data different from other forms of “publicly accessible information” such as telephone or business directory information, or information published in newspapers or magazines.
· The OPC’s discussion of Facebook’s problematic privacy practices at the time the profiles were created muddies the discussion of “publicly available information”. A finding that Facebook had appropriate rules of consent should not change the fact that social media profiles should not be considered “publicly available information” for the purposes of the exception.
It is also worth noting that a complaint against PTL to the New Zealand Office of the Privacy Commissioner proceeded on the assumption that PTL did not require consent because the information was publicly available. In fact, the New Zealand Commissioner ruled that no breach had taken place.
Given the ETHI Report’s recommendation, it is important to keep in mind that the definition of “publicly accessible information” could be modified (although the government’s response to the ETHI report indicates some reservations about the recommendation to change the definition of publicly available information). Because the definition is found in a regulation, a modification would not require legislative amendment. As is clear from the ETHI report, there are a number of industries and organizations that would love to be able to harvest and use social media platform personal information without need to obtain consent. Vigilance is required to ensure that these regulations are not altered in a way that dramatically undermines privacy protection.
