In the World of Social Media, When Does "Private" Mean Private? a Critique of Germany's Proposed Amendments to Its Federal Data Protection Act

Article excerpt

"I must confess that I've never trusted the Web. I've always seen it as a coward's tool. Where does it live? How do you hold it personally responsible? Can you put a distributed network of fiber-optic cable 'on notice'? And is it male or female? In other words, can I challenge it to a fight?"^sup 1^

I. INTRODUCTION

You use it in the car and on the train. You use it in the library, while you're on the phone, and during class. You use it every single day of the week, including weekends. You use it when you're sad and when you're happy. You use it for business and for pleasure. You use it in the rain, in the snow, and on the beach. You will probably use it before, during, and after your wedding. You definitely used it last night and again this morning. You used it five minutes before reading this. You love it and you hate it, but you definitely can't live without it-you are addicted to social media.2

Don't be ashamed, you are not alone. As of June 2010, there were 1.97 billion Internet users worldwide.3 Of these nearly two billion users, 600 million had Facebook accounts and 175 million used Twitter, and there were approximately 152 million blogs on the Internet.4 During December 2009, the average global user spent over five and a half hours on websites (sites) like Facebook and Twitter, making social networks and blogs the most popular online category of entertainment when compared to instant messaging and games.5 During that same month, Japan had 46.6 million unique visitors to social media sites, the average Australian spent seven hours communicating through social media, and the number of unique visitors to Twitter in the United States increased by 579%.6

With users sharing so much personal information online, a new question arises: what reasonable expectation of privacy should individual users have regarding this information? More specifically, when should individuals expect that their information is protected from view by their potential employers during the job application process? When does "private" really mean private?

On August 25, 2010, Germany's Federal Cabinet approved a draftlaw (DraftLaw) amending its Federal Data Protection Act, or Bundesdatenschutzgesetz (BDSG).7 The DraftLaw would expand the BDSG's regulation of workplace data privacy in order to balance the value of information to employers with the value of personal data to employees.8 Most importantly for the purposes of this Note, it would prohibit employers from using social networking sites like Facebook when researching job candidates.9 The law surrounding the use of social media to perform background checks and to obtain information on employees10 is decidedly unsettled both in the United States and abroad.11 Germany is one of the first countries to enact specific legislation aimed at regulating how employers may use professional and social networking sites when hiring and monitoring both potential and current employees.12

As with the majority of new data privacy legislation, the DraftLaw suffers from two major problems. First, the rationale behind the law is to protect individuals' online data privacy by regulating what online information employers are permitted to view.13 If Germany's goal is to protect its citizens, it should be encouraging discretion regarding the information its citizens put online about themselves. This is the most effective form of privacy protection and puts the power in the individual's hands to protect themselves rather than merely trying to tie the hands of the employer.

Second, the DraftLaw is too nuanced because it relies on too many balancing tests and vague terms. The Draftlaw will be unsuccessful if its practical purposes are to decrease litigation and provide courts with guidance, for cases involving the use of social networking for recruiting purposes. Ultimately, countries should encourage individuals to be very cautious about what information they put online through social networking sites. …