In the recent case of Sabados v Facebook Ireland [2018], the English High Court ordered Facebook to disclose the identity of a mystery individual who requested that the platform delete the profile of a deceased user of the platform.

Around six months after the death of Mr Mirza Krupalija, Facebook received a request from an individual to delete Mr Krupalija’s personal profile, as well as the page of his band. Facebook duly complied with this request, leaving his long-term partner, Ms Azra Sabados, “devastated by the loss of so much material”.

Ms Sabados made a subject access request to Facebook on the basis that some of that deleted information, (which included photographs, poems and messages between the couple) would have included her own personal data. In response to a subject access request, Facebook confirmed that the data from Mr Krupalija’s profile was no longer available and that it was not able to tell Ms Sabados who requested that her partner’s profile be deleted.Continue Reading The digital beyond: Facebook ordered to disclose circumstances around deleted profile

On 24 August 2018, the Munich Court of Appeal (“Court”) issued a preliminary injunction against Facebook that prohibits Facebook from deleting a certain user’s post (docket no. 18 W 1294/18).

Facts of the case

The claimant is a Facebook user who had taken part in a discussion on the Facebook page of a renowned German news journal on Austria’s announcement of border controls. In the course of a controversial discussion, in particular with another Facebook user, the claimant posted a quotation of the German poet Wilhelm Busch, combined with a provocative statement against another Facebook user:

Original German wording English convenience translation:
… Gar sehr verzwickt ist diese Welt, mich wundert’s daß sie wem gefällt. Wilhelm Busch (18321908)

Wusste bereits Wilhelm Busch 1832 zu sagen:-D Ich kann mich argumentativ leider nicht mehr mit Ihnen messen, Sie sind unbewaffnet und das wäre nicht besonders fair von mir.

… This world is very tricky, I wonder who likes it. Wilhelm Busch (1832–1908)

Wilhelm Busch already knew in 1832 to say :-D Unfortunately, I can no longer compete with you argumentatively, you are unarmed and that wouldn’t be particularly fair of me.

Facebook deleted the claimant’s post.
Continue Reading Munich Court of Appeal prohibits Facebook from deleting a post that does not fall under the German Hate Speech Act

Addressing the detection of and removal of illegal content from online platforms represents an urgent challenge for the digital society today. However, so far, there is no harmonised and coherent approach across the European Union. On 28 September 2017, the European Commission (“Commission”) published a communication titled „Tackling Illegal Content Online – Towards an enhanced responsibility of online platforms” (“Communication”). The Commission calls for a more aligned approach as it would make the fight against illegal content more effective. An aligned approach would also benefit the development of the Digital Single Market. The Commission stresses that online platforms carry a significant societal responsibility and shall, therefore, decisively step up their actions to address this problem.

Scope of the Communication

The Communication does not as such change the existing legal framework. It rather lays down a set of non-binding guidelines and principles for online platforms to step up the fight against illegal content online in cooperation with national authorities, Member States, and other relevant stakeholders: “It aims to facilitate and intensify the implementation of good practices for preventing, detecting, removing and disabling access to illegal content so as to ensure the effective removal of illegal content, increased transparency and the protection of fundamental rights online. It also aims to provide clarifications to platforms on their liability when they take proactive steps to detect, remove or disable access to illegal content (the so-called “Good Samarian” actions).”

The Communication does not only target the detection and removal of illegal content; but it also takes into account issues arising from removal of legal content (“Over-Removal”), which may impact the freedom of expression and media pluralism. Therefore, the Commission calls for adequate safeguards which shall properly prevent Over-Removal.
Continue Reading European Commission calls for enhanced responsibility of online platforms for illegal content

The Article 29 Working Party (“WP29”) recently published an opinion on data processing at work (“Opinion”).

The Opinion restates the position and conclusions in WP29’s 2001 Opinion on processing personal data in the employment context (WP48), and its 2002 WP55 Working Document on the surveillance of electronic communications in the workplace. However, it addresses the need for a new assessment of the balance between legitimate interests of employers and the reasonable privacy expectations of employees, because of risks posed by advancements in modern technologies since the other documents were published.

The Opinion is primarily concerned with the Data Protection Directive 95/46/EC (“DPD”), so employers should continue to take account of the fundamental principles of the DPD when processing personal data in an employment context. Technological developments and new methods of processing have not changed this position.

The Opinion also looks towards the “new” obligations placed on all controllers, including employers, under the General Data Protection Regulation 2016/679 (“GDPR”) – including data protection by design, the need to carry out Data Protection Impact Assessments for high-risk processing, and any specific national rules that are introduced pursuant to Article 88 relating to processing employees’ personal data.

WP29 has considered various scenarios in the Opinion which describe how certain technologies might be used to process personal data in the workplace, and the points that employers should consider. Some of these include:
Continue Reading Article 29 Working Party releases detailed opinion on data processing in the workplace

In two last-minute decisions, the German Parliament (Bundestag) will likely adopt the WiFi Act (Entwurf eines Drittes Gesetz zur Änderung des Telemediengesetzes) and the Hate Speech Act (Entwurf eines Gesetzes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken) in the last session of the current legislative term. The parliament will

A DJ asserting trademark infringement and dilution claims against a similarly named rapper failed partly due to a lack of apparent popularity on social media, the U.S. Court of Appeals for the Sixth Circuit ruled on December 13. In Kibler v. Hall, et al., No. 15-2516 (6th Cir. Dec. 13, 2016), the appellate court affirmed summary judgment granted below for Hall, a rapper performing as “Logic” in a suit brought by Kibler, who performs as “DJ Logic.” While the Sixth Circuit agreed with the district court’s rejection of DJ Logic’s claims, it called the district court’s analysis “incomplete and at times flawed,” and pointed out the importance of social media engagements in determining trademark strength.

In 2012, an attorney for DJ Logic, who has been using the moniker since 1999, sent an email to the management company and booking agent of Hall, who has been performing as Logic since 2009, ordering them to stop using the name Logic. The email did not prove persuasive and DJ Logic sued in 2014, asserting claims of trademark infringement and trademark dilution under the Lanham Act, as well as two claims under Michigan law.  The district court granted summary judgment in November 2015, dismissing all of DJ Logic’s claims.
Continue Reading Weak Social Media Presence Sinks Trademark Claims, Says Sixth Circuit

Ask any 1L – personal jurisdiction has always been a tricky issue. But in the internet era, even courts have grappled with how to determine whether an online presence is sufficient to establish personal jurisdiction over a party.   Recently, the Eastern District of Louisiana ruled that an internet presence consisting of a website as well as Facebook, Twitter, YouTube, and LinkedIn pages could not sufficiently demonstrate the “foreseeability or awareness” that a product would reach a forum state’s market required to establish personal jurisdiction. The decision reaffirmed that even in the age of social media, defendants must still directly target a forum to be subject to personal jurisdiction there.
Continue Reading Even in Social Media Age, Web Presence Without Specific Showing of Customer Interaction is Not Enough for Personal Jurisdiction

Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and Lewis v. YouTube, LLC, 2015 BL 428281 (Cal. App. 6th Dist. Dec. 28, 2015), came to differing interpretations of YouTube’s Terms of Service, leading to disparate results for similar plaintiffs.

In Darnaa, YouTube moved plaintiff Darnaa’s music video “Cowgirl” to a new location and reset its view count on the grounds that Darnaa used automated tools in violation of YouTube’s Terms of Service to increase its view count. Darnaa sued, alleging YouTube’s actions were a breach of the covenant of good faith and fair dealing. The United States District Court for the Northern District of California found that it was unclear whether YouTube’s Terms of Service allowed it to unilaterally remove videos and their “view counts” whenever YouTube determined those Terms had been violated. Accordingly, the court ruled that the allegations in Darnaa’s complaint were sufficient to support a claim for a breach of the covenant of good faith and fair dealing. Though the court dismissed Darnaa’s claims on the procedural grounds that it was filed late, it permitted Darnaa to refile if she could plead a compelling justification for her late filing.
Continue Reading YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing

The Information Society Code (2014/917) (Code) – a new act in Finland on electronic communications, privacy, data security, communications, and the information society in general – took effect 1 January.

This sees a consolidation of 10 existing acts into one, which had included Finland’s Communications Market Act; Act on the Protection of Privacy in Electronic

Last Thursday, the Federal Trade Commission (FTC) announced that messaging app Snapchat agreed to settle charges that it deceived consumers with promises about the disappearing nature of messages sent through the app. The FTC case also alleged that the company deceived consumers over the amount of personal data the app collected, and the security measures