users.939 Given their extreme popularity and their embeddedness in individuals’ lives, they naturally affect employment as well. With the collision between privacy and data protection and the employer’s legitimate interests at the focal point of Part I, Chapter 2 aims to examine how employees’ right to privacy and data protection are affected by SNSs.
The primary objective of Chapter 2 is to examine what privacy means in the context of SNSs, and in what regards SNSs increase the blur between the boundaries of professional and private life. It was demonstrated that the right to privacy protects against interference in the private life of the individuals. Jean-Emmanuel Ray recalls the phenomenon of the individualisation of private life (“l’individualisation de la vie privée”) referring to the thoughts of the sociologist Daniel Cardon, who holds that although the right to privacy is traditionally conceived as a protective right, today it is more and more conceived as
939 https://www.statista.com/statistics/278414/number-of-worldwide-social-network-users/ (Accessed: 20 January 2019)
an (individual) liberty, which gains incredible importance in the age of social media self-exposure.940 Regarding privacy protection today, the traditional “protective” nature of the right to privacy (e.g. the right to be let alone) remains valid, but it has to be reconsidered and co-exist with people’s interests in living in a networked society.941
In order to provide answers to these questions, first the conceptual foundations of SNSs should be clarified. Therefore, first, the main attributes of SNSs will be examined, such as their definition and functioning. Second, the legal implications of SNSs will be addressed, with the focus being on the right to data protection. Third, privacy issues will be treated, through determining, in addition to ICT in general, how SNSs affect the boundaries of privacy and the boundaries of personal and professional life.
Section 1: Conceptual foundations
In order to be able to assess the legal implications of SNSs, it is necessary to understand what SNSs are and how they function. After presenting the history and providing a definition of SNSs, their functioning will be described in detail. Naturally, the aim of Section 1 is not to provide guidance merely on how these sites work, it rather serves as a preparatory Section for addressing privacy and data protection questions: it aims to regroup the mainly descriptive presentation of the characteristics of these sites that can possibly gain importance when it comes to employees’ rights. It will also contribute to better understanding the facts of the relevant cases, analysed in Part II.
§1. The rise of social network sites
The following Paragraphs will focus on (A) the history of SNSs, starting with the brief presentation of two basic concepts inseparable from the functioning of SNSs: Internet and Web 2.0. The topicality and significance of the subject will be illustrated through presenting how popular these services have become. After placing SNSs in this context, (B) it will be defined what exactly SNSs are.
(A) History of social network sites
According to the statement of András Szekfü, Internet is where computer communication on a global and universal network occurs, in a packet switched system – by the use of TCP-IP protocol – and from the beginning of the 1990s, in a graphic user interface: in the system of World Wide Web.942 The appearance and the proliferation of the Internet have completely transformed the way people can access information. The Internet as we know today was preceded by various military researches from the 1960s. The World Wide Web was created in 1989 by Tim Berners-Lee in the Conseil Européen pour la Recherche Nucléaire (CERN). From 1991 the access to the network was available to basically any
940 Ray 2015. p. 521.
941 Bylund et al. p. 142.
942 Szekfü 2007. p. 124.
user in education and research and from 1993 anyone could develop the network.943 Since then, the Internet has conquered the world: while in 1995 it had 16 million users worldwide, this number increased up to 3,675 million by September 2016.944
In addition to the proliferation of the Internet, the appearance and widespread use of Web 2.0 technologies must be mentioned. Compared to its predecessor, Web 1.0, Web 2.0 enables users to create and share content as opposed to the structure of the static Web 1.0.945 Social media and SNSs are connected to Web 2.0 as users themselves fill them up with content within the limits ensured by the server host.946 Like technological innovations in general, the Internet and Web 2.0 affect privacy and data protection, by placing the sharing of information data to their centre. As Spiros Simitis noted, Internet has redefined how personal data is processed; such processing is shifted to the Internet, as more and more areas of life are taking place online.947 Robert Sprague also points out how the use of technology changed; today, instead of being merely a source of accessing information, the information sharing nature of the Internet is thriving.948 The Internet goes beyond being merely a technological innovation and influences everyday life: it revolutionized the way individuals live, share, communicate and consume.949
Although the first SNS, SixDegrees appeared back in 1997,950 SNSs only became truly widespread in the first decade of the 21st century. Today’s most known SNSs were launched during the 2000s (for example, MySpace and LinkedIn were launched in 2003, Facebook in 2004, YouTube in 2005, Twitter in 2006, Instagram in 2010 and Snapchat in 2011), and by the 2010s they “conquered the world”, the most popular of them having several millions of users worldwide.951 Even though there exists no legal obligation to create a profile on an SNS, the importance of being present on these platforms suggests that it is questioned whether the individual has a true choice regarding engaging in such an activity – especially in certain communities, such as in schools.952
Employees do not make an exception from the “SNS fever”: employees and prospective employees use these sites just like any other individual. Today not only students are present on these sites (who will grow up and become young employees one day), but also people of all generations are users of these sites.953 It must also be mentioned that SNS use constitutes a “supraglobal” phenomenon: the most popular SNS platforms are available in
943 http://hvg.hu/tudomany/20041203interhist (Accessed: 22 September 2017); Szűts 2015. p. 28.
944 http://www.internetworldstats.com/emarketing.htm (Accessed: 16 December 2016)
Regarding users in Europe, Viviane Reading vice president of the EU’s Commission stated that in 1995 at the time of the adoption of the DPD, less than 1% of Europeans used the Internet. European Commission 2012
945 The next step of development is the appearance of Web 3.0 (also the so-called semantic web), which is based on the semantic tagging of content, integrated and integrable data. Source: Bányai 2016. p. 11.
946 Bozarth 2010. p. 11.
947 Simitis 2010. p. 2003.
948 Sprague 2008a. p. 396.
949 Falque-Pierrotin 2012. p. 31.
950 Boyd – Ellison 2008. p. 214.
951 https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ (Accessed: 4 January 2018)
952 Síthigh 2008. p. 83.
953 On the distribution of Facebook users of different ages see these statistics of 2014: https://www.statista.com/
statistics/376128/facebook-global-user-age-distribution/(Accessed: 17 January 2017)
most countries worldwide – with very few exceptions.954 Although labour law regulations are mainly established at the national level, the behaviour in which employees engage is
“supraglobal”: everywhere where employees engage in SNSs, they behave in a similar way – although differences might arise in the legal response according to the given country’s labour law regulations.
In contrast to the popularity of SNSs, certain interesting observations were made in relation to the migration of users towards other platforms, and also in relation to quitting social media completely. According to a social media use forecast of eMarketer, teenagers and young adults will start to leave Facebook in favour of other social media sites, such as Instagram, or Snapchat.955 Dailymail has also released an interesting article, describing how teenagers have got tired of social media, wishing it had never been invented and what steps they made towards decreasing their dependence on these platforms.956 Although with the amount of users they have today it seems unlikely that SNSs will suddenly disappear from one day to another, it should be kept in mind that changes in their use (e.g. migration from one certain SNS to another one) might occur.
(B) Delimitation of social media and social network sites
Social media and social network sites are similar, but not synonymous concepts. Both of them are based on Web 2.0 and are centred around user-created content.957 However, their exact delimitation might differ based on the opinion of different authors, but usually SNSs are considered to be one form of social media.958
When attempting to find a universal definition describing SNSs, one comes across numerous definitions.959 The situation is exacerbated given that different sites can serve
954 These countries include, for example, China, North-Korea and Iran. https://www.thewindowsclub.com/list-of-countries-that-have-banned-social-media-for-its-citizens (Accessed: 21 October 2019)
955 https://www.emarketer.com/Article/Instagram-Snapchat-Adoption-Still-Surging-US-UK/1016369 (Accessed:
10 November 2017)
956 http://www.dailymail.co.uk/news/article-4950268/Even-teenagers-growing-tired-social-media.html (Accessed:
10 November 2017)
957 According to the OECD, user-created content is “i) content made publicly available over the Internet, ii) which reflects a certain amount of creative effort, and iii) which is created outside of professional routines and practices.” Vickery – Wunsch-Vincent 2007. p. 9.
958 Jue – Marr – Kassotakis 2010. p. 50.; Klausz 2016. p. 71.; Flynn 2012. p. 332.; Kaplan – Haenlein 2010.
p. 62.
959 According to the OECD, social network sites “enable users to connect to friends and colleagues, to send mails and instant messages, to blog, to meet new people and to post personal information profiles.” Vickery – Wunsch-Vincent 2007. p. 38.
Nancy Flynn defines social networks as “online platforms where users create profiles, post content, share information, and socialize with others.” Source: Flynn 2012. p. 332.
According to Nathalie Dreyfus, social network sites “[…] are online communication platforms, which allow the user to join or to create a network of users who share a common interest. They stand as a website which, after a registration which is usually free and requires providing information (name, birthday, e-mail address), allows to access a platform of exchange and dialogue.” Cited in: Costes 2011. p. 132.
After analysing the arising legal challenges and the given answers in relation to law and social network sites, Valère Ndior proposes the following legal definition, according to which “the common essential criteria of social networks would be to constitute a web hosting platform, which act as technical intermediate in order to provide to the public, for personal or for professional reasons, means and spaces of communication or interaction with other users. The owner of the social network account act as content publisher on a profile
different purposes. Establishing one unique definition is also made more difficult by the myriad of the existing SNSs. The thematics of these sites can vary: for example, while Facebook, YouTube, Instagram and Twitter are “general” social network sites (they are destined for everyone, without bearing special thematics), LinkedIn and Viadeo are business centered social network sites, Academia and ResearchGate are for researchers, CouchSurfing is for travellers, etc. National SNSs also exist, destined for people living in a given region or country, such as the late iwiw in Hungary, Copains d’avant in France, Weibo in China or Mixi in Japan.960
Ludovic Pailler identified two reference definitions: for US scholars it is the one defined by danah m. boyd961 and Nicole B. Ellison, while European scholars mostly refer to the definition established by the WP29.962 According to danah m. boyd and Nicole B. Ellison, social network sites are “[…] web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.”963, 964 Based on the definitions established in the article of boyd and Ellison, Dick Stroud proposes to create a “checklist” with the main elements of these sites. These elements are: a) possibility to create private or public profiles b) identifying a network of contacts c) messaging, communicating with the contacts d) content sharing such as photos or videos e) add-value content.965
According to the WP29, social network services are “[…] online communication platforms which enable individuals to join or create networks of like-minded users.”966 The WP29 complements this definition by identifying three common characteristics of social network sites: (1) users share their data in order to create profiles or a description of themselves, (2) possibility of posting user-generated content, such as videos, photos, etc. (3) providing a list of contacts and possibility to interact with these contacts.967 Lamia El Badawi also proposes to identify the common characteristics of SNSs, which are – according to my opinion – consistent with the above-presented definitions: the creation of a profile, the public exposure of contacts and the publishing of content.968 The three characteristics – profile, content, and contacts – are common to all SNSs, although it can differ which one of them is more emphatic.969
However, despite the establishment of these common characteristics, the evolutive nature of SNSs should be taken into consideration. Without questioning the validity of the
presumed to constitute a public space, except if the owner demonstrates that the contacts who he/she approved constitute a community of interest within which the data published remains under his/her control.” Source:
Ndior 2015. p. 35.
960 See more on the different types of social network sites in: Ndior 2015. pp. 17–19. and Clarke 2014. p. 172.
961 danah m. boyd writes her name in lower case on purpose. https://www.danah.org/name.html.
962 Pailler 2012. pp. 16–17.
963 Boyd – Ellison 2008. p. 211.
964 Based on this definition, the Council of Europe states that “[a] social networking service is a platform which enables the building of social relations among people who share interests, activities, backgrounds or real-life connections. It is a web-based service that allows individuals to create a profile, to establish a list of users with whom to share views and to develop contacts within the system.” Source: CoE 2015. par. 45.
965 Stroud 2008. p. 279.
966 WP29: Opinion 2/2017. p. 4.
967 WP29: Opinion 2/2017. p. 5.
968 El Badawi 2014. pp. 108–109.
969 Pailler 2012. p. 17.
presented “reference definitions”, Valère Ndior suggests adding other attributes, such as its extent of openness, the ways of connecting to it and its private or institutional nature, in order to better take into consideration the evolutive and hybrid nature of these sites.970
Regarding the definition of social media SocialMediaToday evokes the definitions provided by the Merriam-Webster dictionary.971 The dictionary defines social media as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos)”,972 while social networking as “the creation and maintenance of personal and business relationships especially online”.973 According to Andreas M. Kaplan and Michael Haenlein, social media are “[…] a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content[,]”974 while social network sites are “[…] applications that enable users to connect by creating personal information profiles, inviting friends and colleagues to have access to those profiles, and sending e-mails and instant messages between each other.”975
According to Nancy Flynn, social media refers to “[a] category of Internet-based resources that facilitate user participation and user-generated content. Social media include but are not limited to social networking sites […], microblogging sites […], photo- and video-sharing sites […], wikis […], blogs […] and social bookmarking or news aggregation sites […].”976
According to Clara Shih – in consistency with the above-presented definitions – the main difference between the two concepts is that while social media are content-oriented (they concentrate on the content – photos, videos, comments, etc. – the user is just a mere contributor), social network sites focus on human relationships (on profiles and relations). Of course, many social network sites also enable users to share content (e.g. likes, comments, photos or videos on Facebook), but their role is secondary, compared to relationships.977 In contrast to social media, social network sites enable the individual to create his/her own profile, establish and develop relationship with others and to “live in the community”
through the different services provided by these sites.978 In sum, while content sharing is in the centre of social media, social network sites, as a form of social media, have a more personal character and focus on establishing and maintaining relationship between users.
To sum up, social media and SNSs are closely related: they are both web-based platforms, based on Web 2.0 technologies, where user-generated content plays a crucial role in their functioning. SNSs are often considered as a type of social media, and even overlaps can be observed.979 For the purpose of the monograph, their greatest difference is the emphasis
970 Ndior 2015. p. 15.
971 http://www.socialmediatoday.com/social-business/peteschauer/2015-06-28/5-biggest-differences-between-social-media-and-social (Accessed: 22 September 2017)
972 https://www.merriam-webster.com/dictionary/social%20media (Accessed: 22 September 2017)
973 https://www.merriam-webster.com/dictionary/social%20networking (Accessed: 22 September 2017)
974 Kaplan – Haenlein 2010. p. 61.
975 Kaplan – Haenlein 2010. p. 63.
976 Flynn 2012. p. 332.
977 Shih 2011. p. 38.
978 Bányai 2016. p. 70.
979 Certain platforms can be considered social media and social network at the same time (e.g. Facebook). http://
www.huffingtonpost.com/fauzia-burke/social-media-vs-social-ne_b_4017305.html%202017%2002%2027 (Accessed: 22 September 2017)
regarding their main purpose: while on social media the focus is on publishing content, social network sites have more personal characteristics and are centred around establishing and maintaining relationships.
Activities both on social media and on social network sites can conflict with the interests of the employer, for example, the employee can jeopardize the employer’s reputation in a blog entry (social media) or in a post on his/her Facebook account (social network site).
However, focus will be primarily put on the use of social network sites for the reason that, since they are centred around relationships, they are more closely connected to employees’
personal lives than social media. As the presented definitions highlighted, in contrast to social media, SNSs are even more user-oriented and self-centred, therefore the employee’s personal life is more fundamentally influenced by them. Still, social media will not be excluded from the discussion in cases when the publication of certain facts on social media belongs to the personal sphere of the individual.
§2. Functioning of social network sites
It is necessary to present the technical functioning of these sites in order to be able to understand what legal challenges their use can lead to in the employment relationship.
In the following paragraphs, the analysis will be conducted through examining different attributes of SNSs, such as what kind of information is available, who can publish content and who can access it.
(A) What can be published?
The first matter that must be examined is the type of content that can be published on SNSs. As a preliminary point it must be noted that content shared on SNSs can either relate directly to the employment (e.g. posting an opinion about someone’s supervisor) or can relate to a topic not directly relevant to the employment relationship (e.g. expressing one’s political opinion).
The whole idea of SNS is based on the active participation of the user, generating content. The form of the content can vary according to the given SNS, as they are structured differently, putting the emphasis on certain forms of sharing content. For example, Facebook makes it possible to share different kinds of content, starting with status updates, comments, likes, photos, videos, events, etc. YouTube is a video sharing platform, while Twitter provides micro-blogging service. On Instagram, users can share pictures (and short videos).
The whole idea of SNS is based on the active participation of the user, generating content. The form of the content can vary according to the given SNS, as they are structured differently, putting the emphasis on certain forms of sharing content. For example, Facebook makes it possible to share different kinds of content, starting with status updates, comments, likes, photos, videos, events, etc. YouTube is a video sharing platform, while Twitter provides micro-blogging service. On Instagram, users can share pictures (and short videos).