Mar 24 2010

European privacy regulators investigate “tagging” features of Facebook and Google

Posted by M. James Daley at 4:13 PM
3 comments - Categories: Social Media | Cross-Border | International Concerns

On March 24, 2010, European regulators announced an investigation of the practice of photo and video “tagging” in Facebook and in Google’s “YouTube.” EU regulators argue that tagging without consent of non-registered users is a breach of data privacy laws. And they note that neither Facebook nor Google have an age requirement for information users posts about others.

This inquiry, led by Swiss and German officials, falls on the heels of the recent conviction of Google executives in Italy for violating data privacy laws by permitting the posting of a disparaging video of a minor on its popular YouTube site. This current investigation amplifies the issue of whether social networking providers are legally responsible for content posted by members. In particular, EU officials have asked Facebook to justify its functionality that allows photo and video “tagging” of persons who have not registered for Facebook.

Under Swiss privacy laws, it is possible that Facebook could be ordered to obtain written consent of person’s whose image has been posted online, and to remove all photo and video tags until this has been accomplished. Obviously, this would all but eliminate the viability of the feature.

A related issue is whether such posting constitutes an unlawful “processing” or “transfer” of personal data under the EU Data Protection Directive, when such information is harvested for use in cross-border litigation and regulatory investigations. This may foreshadow enforcement of harsh “blocking statute” restrictions and sanctions as well.

EU regulators reject claims by Facebook that either prior express or implied consent for all postings is obtained through registered users. Facebook Europe has responded by recently adding a tool for nonusers to have their data removed. Google has, at least for now, suspended its plans to implement face recognition for postings, although others have forged ahead. And just last month, european privacy regulators demanded that Google warn people before dispatching cameras into cities for its Google Maps application.

Facebook and Google have pledged cooperation with EU regulators. However, if a compromise is not reached, this may well lead to another high-profile cross-border showdown later in 2010.