Bottom Line: Canadian privacy regulators
continue to shape the law relating to privacy and social networking
websites. Since our annual Update last September, multiple
complaints have been investigated against social networking
websites, including Facebook and Nexopia. Among other important
findings: a) Facebook provided appropriate notice and obtained
informed consent in the context of social plug-ins on third-party
sites; b) Facebook's emailing of "friend suggestions"
to non-Facebook users was found to require clear and adequate
notice and a conspicuous opt-out which Facebook implemented; and c)
among other things, improvements were recommended to Nexopia's
explanation of how it used member profile information to serve ads,
third-party cookies and opt-outs.
The Office of the Privacy Commissioner of Canada
("OPC") released three Reports of Findings on
Facebook over the last year – two of which are particularly
relevant to marketers.
PLUG- IN USE
In the first investigation, related to Facebook's use of
social plug-ins (the "Like" button and
"Recommends" or "Recent Activity" box) on
third-party websites, the complaint was found to be "not
well-founded." The OPC okayed the social plug-ins on
the basis that: (a) Facebook was not sharing its users'
personal information with the third-party hosts; and (b)
Facebook was providing users with clear, understandable
explanations of how the plug-ins employ users'
The second complaint, relating to Facebook's
"Friend Suggestion" feature, was found
to be "well-founded and resolved". In this investigation,
complainants had received an email invitation to join Facebook that
included "friend suggestions" (i.e., a list of Facebook
users that the non-user may know based on the non-user's email
address and other information available on Facebook such as photo
tags). In its Report of Finding, the OPC found that
Facebook failed to obtain non-users' consent to use their
personal information to generate friend suggestions. However, the
OPC was satisfied with the solution Facebook implemented when it
began to provide non-users with both clear and adequate
notice and a conspicuous opt-out
mechanism to enabel non-users to opt-out of having their
personal information used for "friend suggestion". The
matter was accordingly resolved.
Also in February 2012, the OPC responded to the Public Interest
Advocacy Centre's complaint against Nexopia, a Canadian
social networking website for youth.
The complaint involved six issues, including an allegation that
Nexopia did not adequately explain its advertising practices, in
particular, how personal information is shared for advertising
purposes. The Report of Finding commented on the following
two advertising practices:
Use of member profile information to serve targeted ads
to users. Consistent with a previous finding on this
issue, the OPC found that Nexopia's own use of member profile
information for advertising purposes and Nexopia's serving of
targeted ads to users was acceptable, as long as it
provided adequate notification to users. The OPC's
conclusion was influenced by the facts that Nexopia is a free
service and advertisers receive only aggregate information about
Placement of cookies by third parties, such as
advertisers, in the browsers of users and site visitors to track
web usage. Citing its December 2011 Privacy and Online
Behavioural Advertising Guidelines, the OPC emphasized
that individuals "should be able to opt-out of being tracked
by third-parties" (which are typically unknown to them).
ensure that users are better informed about the
use of Nexopia-served advertising, the presence of
third-party cookies and how users can opt
out of third-party cookies. Further, the OPC recommended
that Nexopia use "alternative methods on its website to
explain the implications of third party targeted
advertising and tracking cookies with respect to
users' information, and how users can opt-out of such tracking,
e.g. by adjusting their browser settings."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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