In connection with the main subject, SNSs can blur two boundaries: the boundaries of privacy and the boundaries of professional and personal life. On the one hand, (§1) it has to be assessed whether and if yes, how SNSs can alter reasonable expectations of privacy, and whether they can influence what is considered to be covered by privacy nowadays.
On the other hand, it is necessary to examine (§2) that in the light of how ICT contributed to blurring the boundaries between professional and personal life, what specific problems, inherent to SNSs arise in this regard.
§1. Changed expectations of privacy
Before addressing the questions of (B) how SNSs altered the boundaries of privacy, what privacy means in the context of SNSs, it is necessary to consider (A) what are the significance and the underlying reasons behind the use of SNSs and what role(s) do they play in individuals’ lives?
(A) Importance of social network sites
As it was already mentioned, the popularity of SNSs is given by their capacity to fulfill three basic human needs: according to James Grimmelmann these needs are self-expression (identity), communication (relationships) and being part of a community. These needs constitute the basic elements of social interaction. First, through shaping their online profiles users can express their identity. Second, on SNSs users can communicate and maintain relations with others in several ways. Third, they can feel that they are part of a community and they can establish their social position within the community.1019
Desiring to express one’s identity and to manage one’s perceptions taken of the individual by third parties is not a novelty.1020 On SNSs users can present an image of themselves in various forms, where each feature provided by the SNS serves as a means for self-expression, be it a (profile) picture, a caption, filters, hashtags, likes, membership in a group, etc.1021 SNSs allow users to create a carefully shaped identity, where posts might be carefully planned, aiming to reflect the precise image that the user aims to diffuse towards his/her contacts.1022 SNSs are centred around the individual, creating personal, or “egocentric” networks.1023
Leigh A. Clark and Sherry J. Roberts note that technology has always had a significant impact on how people communicate (e.g.: telegraph, telephone, Internet, etc.) and SNSs should be considered as a next step of human interaction, therefore they shall receive
1019 Grimmelmann 2009. pp. 1151–1159.
1020 Notably see Erving Goffman’s “impression management” describing how individuals aim to control the impressions that others might have of him/her. Goffman, Erving: The Presentation of Self in Everyday Life.
University of Edinburgh, Social Sciences Research Centre, Edinburgh, 1956
1021 Grimmelmann 2009. pp. 1152–1153. Creating a perfect post has become an increasingly complex, well-planned act.
1022 https://www.nytimes.com/2006/02/19/fashion/sundaystyles/here-i-am-taking-my-own-picture.html (Accessed:
20 January 2019)
1023 Boyd – Ellison 2008. p. 219.
adequate protection.1024 Ways of communication naturally change over time and since the creation of the Internet, it has changed how users use it. At the beginning of the 21st century, its information-sharing nature started to thrive,1025 and has not stopped since,1026 leading to the phenomenon that it has become an integral part of everyday life: users share bits of their personal lives, be it pictures of a party, a holiday, Christmas celebration, a meal in a restaurant or drinks in a fancy bar. Today, being (actively) present on SNSs is even a societal expectation, reflected in the mantra of SNSs that if it is not posted to SNS, it did not happen.1027
SNSs can let users establish their social position and enable them to be recognized members of the community,1028 which can manifest in several forms – either in the number of contacts, or in the number of likes received. When it comes to the reasons for using SNSs, the (informational) societal pressure is also an important factor. If everyone is present on these sites, staying out of them – in the age of information, when information is in the centre of life – can represent a serious disadvantage, as the user would not be able to use certain services and have the same possibilities as the other users.1029 Users are bound to these services because they can only leave these sites with difficulties, because if they do so, they would leave all their friends, too.1030 Also, being present on these platforms and keeping in touch with different contacts is crucial, as today “[c]onnectedness is social currency”.1031
Besides satisfying basic human needs, the Internet and SNSs can also play an important role in promoting the exercise of human rights.1032 The use of SNSs can also constitute a way of exercising fundamental rights. From a legal perspective, the Council of Europe’s Committee of Ministers emphasized the importance of the Internet and SNSs in promoting the exercise and enjoyment of human rights and fundamental freedoms, stating that they can also enhance participation in social and political life and promote democracy and social cohesion.1033 Isabelle Falque-Pierrotin also emphasized the role of the Internet in promoting the exercise of individual and public liberties – especially freedom of expression and right to information – and argued that the exercise of these rights is inseparable from the question of privacy protection.1034 One employment specific example can be the exercise of collective labour rights, as communication on SNSs might also serve the activity of trade unions, etc.
Such an enhanced importance of these platforms can raise the question: do individuals have a right to social media? With respect to employees’ privacy and data protection this
1024 Clark – Roberts 2010. p. 508., p, 509., p. 518.
1025 Sprague 2008a. pp. 395–396.
1026 According to the site Brandwatch, in 2016, 6 new Facebook profiles were created in every second and the site generates 4 petabytes of data per day. Users generated 4 million likes per minute and uploaded 350 million photos per day. https://www.brandwatch.com/blog/47-facebook-statistics-2016/ (Accessed: 7 January 2017)
1027 https://www.theguardian.com/news/2015/feb/26/pics-or-it-didnt-happen-mantra-instagram-era-facebook-twitter (Accessed: 20 January 2019)
1028 Grimmelmann 2009. p. 1157.
1029 Cseh 2013. p. 90.
1030 Mendel et al. 2013. p. 38.
1031 Grimmelmann 2009. p. 1158., pp. 1151–1159.
1032 Hiselius 2010. p. 202.
1033 CoE: Recommendation CM/Rec(2012)4 of the Committee of Ministers to member States on the protection of human rights with regard to social networking services, 2012
1034 Falque-Pierrotin 2012. pp. 34–35.
question is crucial, as it relates to whether and if yes, how employees can be told what behaviour they should adopt on these sites1035 or whether employees can be ordered to withdraw from the use of social media. Do employees have a “right to social media” in the light of the evolutive concept of private life interpreted as being able to live one’s life as one wishes and in the light of the growing role of social network sites in everyday life? The phenomenon of adopting internal social media regulations poses the question whether the employer can restrict – and if yes, to what extent –, employees’ use of SNSs?
Can the employer order the employee to like certain content on these sites or to friend the employer?
In France, the Constitutional Council’s decision on the Act furthering the diffusion and protection of creation on the Internet1036 must be mentioned, in which the Constitutional Council had to take position in a slightly similar case. The act aimed to give the administrative authority, the High Authority for the dissemination of works and the protection of rights on the Internet (“Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet”, abbreviated as HADOPI) the power to impose penalties in the form of withholding access to the Internet. The Constitutional Council declared that the right to access to the Internet falls within the scope of the freedom of communication and expression.1037 Although – in contrast to the US court – it did not acknowledge the existence of a fundamental human right to access to the Internet, it affirmed that the threats to the freedom to access the Internet are regarded as threats posed to the right to the free communication of ideas and opinions.1038, 1039
Considering the acknowledgement of public or social private life, the ECtHR’s Niemitez decision should be mentioned although the decision did not directly relate to SNSs but to the public aspects of private life in general. Today aren’t SNSs one of the principal forums
1035 For example, employers sometimes ask their employees to be actively present on these sites in order to enhance the employer’s e-reputation. Source: Ray 2012. p. 936.
1036 Conseil constitutionnel: décision n° 2009-580 du 10 juin 2009
1037 The Constitutional Council stated that the freedom of expression is one of the most important human rights, and that “[i]n the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.” Decision n°
2009-580 of June 10th 2009, par. 12.
1038 Commentaire de la décision n° 2009-580 DC – 10 juin 2009 Loi relative à la diffusion et à la protection de la création sur internet. Les Cahiers du Conseil Constitutionnel, (27). Available at: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2009580DCccc_580dc.pdf (Accessed: 6 June 2018) p. 7.
1039 As an illustrative example a case from the US should be mentioned as it draws attention to the importance of SNSs in everyday life. In the US, in 2017 the Supreme Court of the United States ruled on the existence of the right to social media. In 2008 the state of North Carolina adopted a statute making it a felony for registered sex offenders to gain access – amongst others – to social media sites. The Supreme Court stated that “[North Carolina’s] statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.
Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. […] By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Therefore, States cannot adopt in their statutes a blanket ban on the use of these sites. Source: Supreme Court of the United States: Lester Gerard Packingham, Petitioner v. North Carolina, June 19, 2017
where individuals “establish and develop relationships with other human beings”?1040 Does the right to informational self-determination not go beyond simply protecting privacy but aim to guarantee “the primacy of the individual, to be able to exercise his/her freedom”?1041 Therefore social media raises the question to what extent employees are free to use these platforms and how their behaviour can be restricted by the employer.
Neither in France nor in Hungary is the right to social media expressis verbis guaranteed.1042 However, considering the already presented role that social media plays in personal life and the rights associated with it, it can be deducted from the general rules of both labour codes, namely from the provisions regulating how employees’ rights can be limited, that as social media often constitute an important tool in exercising such rights, through the protection of these rights, the use of social media is protected as well. Therefore, employers can only limit the use of SNSs if certain requirements are met – as it will be examined in detail in Part II.
In sum, the use of SNSs is more than a discretionary choice of the individual.1043 They constitute the 21st century way to fulfil basic human needs. Although it is not obligatory to use them, they have become part of the reality of the modern world, making it hard to completely avoid using these services. Of course, according to the temperament of the given user, the extent of being a silent observer or engaging actively in their use can differ.
Naturally, employees are amongst SNS users as well.
While acknowledging that the appreciation of a case depends on the exact circumstances and that the employee can face labour law consequences if he/she oversteps the limits of such a use, it should be noted that for the above reasons the behaviour of employees who engage in SNSs and share a certain amount of personal data during such a use is not automatically considered as illegitimate. However, as their intended use naturally comes with the share of personal information and personal data, the question of what is considered to be private in the context of SNSs is raised.
(B) Social network sites and the boundaries of privacy
It was already demonstrated that privacy is a flexible, ever-changing concept. Besides the individual’s attitudes towards privacy, privacy law is closely connected to technology, technological advances might call for changes in privacy laws, too. Naturally, SNSs raise different questions than printed letter or e-mails. As Jon L. Mills noted, “[a]n individual living in the 21st century does not have the same reasonable expectation of privacy as a person living in the 1700s.”1044 Societal norms can also have an influence on what can be
1040 ECtHR: Niemietz v. Germany, application no. 13710/88, 1992. par. 29.
According to Alejandra Michel, it follows from the evolutive case law of the ECtHR, which is evolving in the light of the given societal and technological innovations, that it is possible that the individual’s right to
“establish and develop relationships with other human beings” is guaranteed on SNSs as well. Michel 2016.
p. 105.
1041 Conseil d’Etat 2014. p. 268.
1042 On the potential fundaments of a right to SNS see more in: Pailler 2012. pp. 28–46.
1043 Del Riego – Sánchez Abril – Levin 2012. p. 23.
1044 Mills 2015. p. 160.
He also draws attention to the fact that just because in the modern world it is easier to intrude into someone’s private life, it does not mean that this intrusion should be considered acceptable and legitimate. According to
considered private, and today it is a normal part of the 21st century – especially for the younger generations – to expose one’s private life in the online world.1045 Unlike in the “pre-SNS era” – it is considered normal to share events that used to be considered private.1046
One of the novelties brought by SNSs is not the mere change in the reasonable expectation of privacy, but also the phenomenon that a huge amount of this private information is published at the initiative of the users themselves. As a consequence, many privacy issues are created by the users themselves,1047 as it is the users’ continuous activity that drives SNSs.1048 As Woodrow Hartzog noted, in the age of Warren and Brandeis the sanctity of private life was threatened by external parties, but today the Internet user has become his/
her worst enemy.1049 It is unprecedented to observe during the history of mankind such an extensive and voluntary share of private information.
SNSs standardize and encourage the share of personal data.1050 Privacy and data protection consequences arise from the very nature of social network sites, as their whole functioning is based on the share of personal data.1051 Today, self-exposure is the choice of users: they decide to share all that information.1052 These attitudes have led to the phenomenon that users from all around the globe share their personal data in a quantity and quality never seen before, “[…] pushing at the boundaries of what societies see as a person’s individual space[.]”1053
William A. Herbert describes this phenomenon as electronic exhibitionism, endemic to SNSs, which means “the increasing worldwide phenomenon of individuals eviscerating their own privacy by affirmatively or inadvertently posting and distributing private and intimate information, thoughts, activities and photographs via email, text messaging, blogs, and social networking pages.”1054 The expression exhibitionism has a negative connotation:
one should refrain from automatically applying this expression to users actively engaging in SNSs.1055 It is a natural reaction to think that these individuals have given up their privacy; however, in reality this issue is more nuanced.1056 Even though in this scenario it is the users who decide to voluntarily share personal information, they still expect certain privacy through the limitation of the extensiveness of the exposure.1057
him, today there is danger in accepting this intrusiveness because of the possible risk of causing far-reaching consequences, namely the disappearance of our collective expectation of privacy. Mills 2015. p. 162.
1045 Newell 2011. p. 2.
1046 Henderson 2013. p. 4.
1047 Qi – Edgar-Nevill 2011. p. 76.
1048 Stroud 2008. p. 208.
1049 Hartzog 2013. p. 54.
1050 Qi – Edgar-Nevill 2011. p. 75.
1051 North 2010. p. 1288.
1052 Rey 2012. p. 197.
1053 International Working Group on Data Protection in Telecommunications 2008. p. 1.
1054 Herbert 2011. p. 26.
1055 A possible clue to make a distinction between exhibitionism and the intended use of SNSs might depart from the notions of self-disclosure and self-presentation. While self-presentation is “communication of self-data an individual might reveal to most any other person,” disclosure is the “explicit communication of self-data another would otherwise not have access to.” (Simms 1994. p. 317.) Such a distinction might contribute to distinguishing between use that necessarily comes with the use of SNSs and use that reveals personal information beyond that extent; and thus determining the “hard core” of privacy on SNSs.
1056 Solove 2007. p. 198.
1057 Solove 2007. p. 198.
It comes from the very nature of these sites that, in order to use them properly, the sharing of personal information is needed. Naturally, the individual has the power to decide to what extent he/she is going to provide insight into his/her private life, and to which audiences he/she will grant access. As privacy is also dependent on the individual, it will vary from user to user how they will use these sites.
However, individuals’ online presence is dependent not only on the given individual and on his/her choices: other users can also upload personal data relating to third parties. This can either be (ill-)intentioned or can constitute a natural part of self-disclosure. The latter issue is complex because – although individuals do have the right to expose themselves online – in many cases exposing one’s own life naturally comes with exposing information relating to another person(s) as well, since the individual’s life is necessarily intertwined with that of others.1058 In any case, an individual does not exercise full control over his/
her online presence and reputation.
Therefore, in the light of the above-mentioned factors, the question is: what does privacy mean in the context of SNSs? What is considered to be a reasonable use of SNSs in relation to privacy? Considering that in the European legal order privacy is understood as a flexible concept, which is not limited to secrecy but is also closely connected to self-determination, in the monograph it is understood as the individual’s right to decide how to live his/her life. However, in view of the technological and societal changes, should protection be extended to a certain extent to self-disclosing behaviour as well, given the preponderant role SNSs play in establishing and maintaining relationships with others,
Therefore, in the light of the above-mentioned factors, the question is: what does privacy mean in the context of SNSs? What is considered to be a reasonable use of SNSs in relation to privacy? Considering that in the European legal order privacy is understood as a flexible concept, which is not limited to secrecy but is also closely connected to self-determination, in the monograph it is understood as the individual’s right to decide how to live his/her life. However, in view of the technological and societal changes, should protection be extended to a certain extent to self-disclosing behaviour as well, given the preponderant role SNSs play in establishing and maintaining relationships with others,