By agreeing to Terms and Conditions, you are signing an online contract allowing social media to collect and share some personal information.
Have you ever scrolled down the long page of terms and conditions for social media sites and immediately pressed the “I agree” button without even reading it? Certainly many of us have!
It is true you cannot change or individualize the terms and conditions for social media websites. You have no other option. In other words, if you want to join any new social media website, you will need to agree with the conditions imposed by them.
When you agree to these terms and conditions, you are also agreeing to their data policy. You are signing an online consumer contract that allows social media to collect personal information about you and share this information with third parties.
But that is not all. Some of the social media platforms include a forum selection clause that says you can only sue the platform in one specific jurisdiction. Sometimes that is another country. Do you think this seems unfair? The Supreme Court of Canada ruled that it was. In Douez v Facebook Inc, the Supreme Court of Canada held that the forum selection clause in the Facebook contract is unenforceable.
The Court stated:
[T]here was gross inequality of bargaining power between the parties. Individual consumers in this context are faced with little choice but to accept Facebook’s terms of use.
Because the forum selection clause is unenforceable, rest assured you do not need to go to another country to sue the social media company.
What kind of information about me is collected?
Social media platforms are constantly updating their terms and conditions. Recently, in December 2020, Facebook announced their Privacy Policy and Terms of Use agreements, along with their Data Policy and Cookie Policy, would be updated soon. Also, at the beginning of 2021, WhatsApp announced a new privacy policy originally slated to go into effect on February 8th.
But what do these changes in privacy policy have in common? They all say that social media platforms can have access to your personal information. And that they can collect and share this information with other institutions.
Social media can collect general information about yourself (such as the pages, accounts or hashtags that you follow) or more specific data (like the location of a photo or the date a file was created). Moreover, social media can collect information about you that you are not even aware of. For example, Facebook and Instagram can collect information about the actions you take, and the time and frequency you spend interacting with another account. Basically, with all this information, they may know more about you and your habits than you do!
According to Facebook’s Data Policy, they can also collect information about transactions on their site. Although it seems a little bit incredible, this would include payment information, such as your credit or debit card number and other card information.
The burning question here is whether we can control this access. Facebook’s Data Policy says:
[W]hen you search for something on Facebook, you can access and delete that query from your search history at any time, but the record for that search will be deleted after six months.
This means you do have the power to delete or control the information they can collect about you. However, this can take some time and during this time they will be able to share this data.
How does social media share my private information?
Usually, when social media collects personal information, they will share that data in three situations:
- to provide content to research partners and academics to conduct research
- in response to legal requests
- to provide reports and information to advertisers
The most controversial situation, without doubt, is the third one. Most platforms guarantee that they do not provide specific personal information, such as e-mail or full names, unless authorized. However, they provide enough information to make you a target for the next advertising campaign.
Should I be worried about the discretionary use of my information?
Even though most social media platforms affirm they do not sell any information, that does not seem to be enough to guarantee the protection of user’s personal information.
In March 2018, the Office of the Privacy Commissioner of Canada started an investigation into Facebook. The issue was a supposed disclosure of the personal information of its users to a third-party, the “TYDL App”. Third-parties later used the app for targeted political messaging.
The Office of the Privacy Commissioner of Canada presented a report of findings in which it concluded:
- Facebook had inadequate safeguards to protect user information.
- Facebook failed to be accountable for the user information under its control.
Based on these conclusions, the Office made some recommendations to Facebook. The primary recommendation was:
Facebook should implement measures, including adequate monitoring, to ensure that it obtains meaningful and valid consent from installing users and their friends. That consent must: (i) clearly inform users about the nature, purposes and consequences of the disclosures; (ii) occur in a timely manner, before or at the time when their personal information is disclosed; and (iii) be express where the personal information to be disclosed is sensitive.
Without previous and clear consent from the users, no personal information should be shared with third parties. Unfortunately, this is not what happens.
Facebook’s CEO has already made public statements regarding Facebook’s desire to work with regulators towards a more privacy-focused platform. However, the company, along with other social media platforms, has a lot of work to do to guarantee that all user’s personal information is protected.
Can someone use my photos posted on social media without my consent?
Navigating through platforms such as Facebook, Instagram and Pinterest, we note they present to the public a lot of different creative works, especially photographs. All those photographs are protected by copyright. This means that if you post a photo you took on social media, you own the copyright in that photo. The use of any of those images without the owner’s permission can constitute an infringement of copyrights.
In the recent case of Bjørnsen v Sharpe, the Civil Resolution Tribunal of British Columbia held that the simple fact of the images being published on Pinterest does not mean the artwork was in the public domain. This case deals with two publications of artworks on social media without permission. The issue there was whether the respondent’s posts on Facebook, using the artwork created by the applicant, were an infringement of the applicant’s copyright in the artworks.
From this decision, we can conclude that photos posted on digital platforms such as Instagram, Facebook and Pinterest do not constitute the public domain. For that reason, they are not free for all to use. Therefore, before using any photographs posted on social media, especially for a commercial purpose, remember to get the owner’s consent.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Carolina Albuquerque
