124
annual report 2011
15-1. Authorities allowed to use information
from open Facebook profiles
The Central Customs and Tax Administration (SKAT) used an employee’s private Facebook profile to obtain information about a woman from her Facebook.
The woman had an open profile, which meant that any Facebook user would
be able to see the information about her on Facebook. The woman felt that her
privacy had been invaded and she complained to the Data Protection Agency,
which forwarded her complaint to the Ombudsman.
The Ombudsman stated that the standard terms drawn up by Facebook for
the use of Facebook are contractual terms governing the private law relationship between Facebook and its users. The standard terms have no legal effect in
relation to administrative authorities in Denmark, which are subject to public
law regulations and principles. In the matter at hand, SKAT was subject to the
inquisitorial principle and the provisions of the Act on Processing of Personal
Data.
The Ombudsman also stated that if a person has a Facebook profile which is so
open that any Facebook user will be able to see the information on the person
contained therein, such information is in reality publicly available. According
to circumstances, this can also be the case if a person has a restricted-access
Facebook profile but has a very large number of Facebook ‘friends’. Information
about the person can become publicly available in this instance as well.
In principle, the authorities may freely process publicly available personal data
pursuant to section 7(2)(iii) of the Act on Processing of Personal Data. How
ever, the free processing is limited by the Act’s section 5 on good data processing practice. The authorities may only process personal data for legitimate
purposes and if the data are relevant to the case.
The Ombudsman could not criticise that SKAT had obtained information
using an employee’s private Facebook profile, because the employee did not use
a false profile and, given the way the woman had set up her Facebook profile,
did not need to make himself known to the woman in order to get the information.
(Case No. 2011-2657-2091)
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