Facebook is one of the main battlegrounds between privacy and other social goods such as safety and security.
On the one hand, it faces a safeguarding challenge. Interactions through Facebook have the potential to cause harm: defamation, data protection breaches, stalking, harassment, abuse and the like. One safeguard against such harms is to ensure that users are identifiable, i.e. that they really are who they say they are. This facilitates accountability and helps to ensure that only users of an appropriate age are communicating on Facebook. The ongoing litigation before the Northern Irish courts in the HL case raises exactly these sorts of concerns about child protection.
Part of the solution is Facebook’s ‘real names’ policy: you cannot register using a pseudonym, but only with your official identity.
On the other hand, Facebook encounters an argument which runs like this: individuals should be free to decide how they project themselves in their communications with the world. This means that, provided they are doing no harm, they should in principle be allowed to use whatever identity they like, including pseudonyms, working names (for people who wish to keep their private Facebooking and their professional lives separate) or stage names (particularly relevant for drag artists, for example). The real names policy arguably undermines this element of human autonomy, dignity and privacy. There have been colourful recent protests against the policy on these sorts of grounds.
Which is the stronger argument? Well, the answer to the question seems to depend on who you ask, and where you ask.
The Data Protection Commissioner in Ireland, where Facebook has its EU headquarters, has upheld the real names policy. When one of Germany’s regional Data Protection Commissioners (Schleswig-Holstein) took the opposite view, Facebook challenged his ruling and secured a court victory in 2013. The German court suspended the order against the real names policy and, equally importantly, decided that the challenge should proceed in Ireland, not Germany.
This week, however, another German decision turned the tables on the real names policy yet again. The Hamburg data protection authority upheld a complaint from someone who used a pseudonym on Facebook so as to separate her private and professional communications. The Hamburg DPA found against Facebook and held that it was not allowed unilaterally to change users’ chosen usernames to their real names. Nor was it entitled to demand official identification documents – an issue of particular relevance to child protection issues such as those arising in HL.
The Hamburg ruling is notable on a number of fronts. It exemplifies the tension between privacy – in all its nuanced forms – and other values. It illustrates the dilemmas bedevilling the business models of social media companies such as Facebook.
The case also highlights real challenges for the future of European data protection. The General Data Protection Regulation – currently clawing its way from draft to final form – aspires to harmonised pan-European standards. It includes a mechanism for data protection authorities to co-operate and resolve differences. But if authorities within the same country are prone to divergence on issues such as the real names policy, how optimistic can one be that regulators across the EU will sing from the same hymn sheet?
Important questions arise about data protection and multinational internet companies: in which country (or region, for that matter) should a user raise a complaint to a regulator? If they want to complain to a court, where do they do that? If a German user complains to an Irish regulator or court, to what extent do those authorities have to consider German law?
For the moment, Facebook clearly seeks home ground advantage. But its preference for the Irish forum was rejected by the Hamburg authority in this week’s ruling. He is reported as saying that “… Facebook cannot again argue that only Irish Data Protection law would be applicable … anyone who stands on our pitch also has to play our game”.
The draft Regulation has something to say on these matters, but is far from clear as to how to decide on the right pitch and the right rules for vital privacy battles like these.
Robin Hopkins @hopkinsrobin