Linkedin Understanding a Statement of Rights and Responsibilities - Case Study Example

LINKEDIN: UNDERSTANDING A STATEMENT OF RIGHTS & RESPONSIBILITIES 1: LinkedIn User Agreement Social networking site LinkedIn is an online portal geared towards networking for professionals. In any social networking site users will express and post opinions and messages while interacting with other users. Additionally, whilst the purpose of LinkedIn is to facilitate networking of professionals1it is difficult for LinkedIn to continually monitor user activity, which can expose LinkedIn to complex legal issues2. For example, Sparrow highlights that “virtual worlds and Internet social networks are highly complex environments both from the technical software perspective and as regards legal governance”3. Accordingly, most websites and social networking sites will have express terms of use that must complied with and consented to by users as a pre-requisite to being able to use the website4. The LinkedIn user agreement5expressly requires any users registering to become a member of LinkedIn to agree to the terms of the user agreement and privacy policy. The user agreement clearly specifies that agreeing to the terms of the user agreement constitutes a legally binding contract, which is governed by the laws of California6. However, whilst the LinkedIn user agreement confers jurisdiction to California, California law and jurisdiction may not be appropriate to intellectual property disputes. Additionally, the user agreement specifically highlights that some jurisdictions and countries do not permit the use of disclaimers in contracts and therefore in some countries the disclaimers will not be applicable7. There is also an exception from California being the appropriate choice of law and jurisdiction where parties have specified an alternative “competent jurisdiction” in an Arbitration Agreement8. Additionally, LinkedIn users have the right to withdraw consent to the collection and processing of personal information at any time under the terms of the privacy policy. However, the withdrawal of consent is not retroactive, which means that any data collected up until the time of withdrawal of consent can still be processed by LinkedIn. However, if a user is under the age of 13 then under the Children’s Online Privacy Protection Act 1998, the website privacy policy must ensure that parental or guardian consent is obtained for the processing of data collected on the site9. As issues impacting ecommerce and social networking continue to evolve, this in turn leads to continuous changes in legal issues impacting the networking environment10. Accordingly, the user agreement is subject to continuous changes and users are bound by changes to the LinkedIn User Agreement11. Additionally, Clause 2 A. Of the user agreement specifically provides that LinkedIn has the right to continually change the following aspects of user rights and the user agreements: “1. DOs and DON’Ts; 2. Complaints Regarding Content Posted on LinkedIn’s Website; and 3. LinkedIn’s Privacy Policy”12. A significant concern for users when online is information collection in respect of consumer data when purchasing online particularly with regard to privacy and the use of cookies to collect information13. As users of LinkedIn are international, the user agreement acknowledges that whilst the agreement itself is regulated by California law, users must also comply with applicable laws in their home country. With regard to the United Arab Emirates (UAE) Article 31 of the UAE constitution guarantees the right to privacy and Article 378 of the Penal Code prohibits publication of individual’s private affairs14. However, with regard to data protection and online use, there is no comprehensive data protection system in the UAE, which has implications of compliance if interacting with other LinkedIn users in other territories. For example, the UK, under the Data Protection Act 1998 there are strict rules regarding information disclosure and third party use. With regard to the data collection in ecommerce, the Privacy and Electronic Communications (EC Directive) Regulations 2003 regulate information requirements that must be given to website visitors. Additionally, the Council of the EU has voted through a new law that will require consent to the use of internet cookies in the EU and it must be implemented by member states by April 201115. In terms of the security offered by LinkedIn, the site offers the Truste safe harbour seal. Truste independently verifies a website to check that its privacy practices are safe and therefore the seal provides extra protection to the consumer. This is similar to Facebook, which also has the Truste seal, which suggests that Facebook and LinkedIn are both equally secure in providing online privacy to users16. E-commerce refers to doing business online and whilst e-business has provided numerous business opportunities by reducing barriers to market entry, the central legal issues raised by e-commerce are where the contract is made, the governing law, appropriate tax regime and consumer protection.17 The main EU initiatives regulating ecommerce are the Distance Selling Directive (Directive 97/7/EC), Electronic Commerce Directive (Directive 00/31/EC) and the E-Money Directive (Directive 2000/46/EC) The Distance Selling Directive has been incorporated into UK law in the form of the Consumer Protection (Distance Selling) Regulations 2000 (the Regulations). The Regulations provide rights in respect of information disclosure obligations when entering into the contracts online and rights regarding returns and refunds. The Electronic Commerce (EC Directive) Regulations 2002 implemented the Electronic Commerce Directive 2000. Similar to the Regulations, the focus of the consumer protection provisions in the Electronic Commerce Regulations is based on detailed information provisions18. Additionally, the Stop Now Orders (EC Directive) Regulations (2001) enable local authorities and industry regulators to apply for “Stop Now” orders against traders in breach of consumer protection regulations. The central issue facing internet service providers (ISPs) on the Internet is liability for defamation which takes place in another jurisdiction19. In practice, the breadth of services provided by ISPs is wide, ranging from hosting, facilitating online news dissemination to email account administration. Other services include online magazines, blogs and mailing lists20. This has created difficulties in regulating abusive conduct and defamation online and determining liability. For example, under UK defamation law, ISPs constitute secondary publishers and as such will be liable for defamation if there is an element of discretion on the part of the ISP in how long the material is stored and if it has the power to remove abusive content (Collins, 2006). With regard to the general law of defamation, Section 1(1) of the Defamation Act 1996 provides secondary publishers with a defence to a defamation claim. However, the Defamation Act 1996 as currently drafted appears to provide selective application in the Internet arena, with question marks over whether an ISP is the appropriate defendant (Collins, 2006). For example, in Godfrey v Demon Internet Limited ([1994] 4 ALL ER 342) where an anonymous US resident posted defamatory information alleged to be from the claimant on an online newsgroup relating to Thai culture. The contribution was sent to the news service of every site hosted by Usenet. The claimant notified the ISP of the offending material however the ISP left the defamatory content on the website for another ten days before taking action. In a preliminary hearing the High Court emphatically refuted any assertions of the ISP that it merely played a passive role, as it had clearly been put on notice. The Godfrey decision fuelled academic debate regarding ISP liability as it appeared to negate the effect of the Section 1 defence in the context of statements published online21. The Electronic Commerce Regulations 2002 (the Regulations) sought to address the problems faced by ISPs in respect of dissemination of information online by limiting ISP liability with express reference to ISP liability in term of its practical role as either “mere conduit”, “caching” or “hosting” (the Regulations). Under US law, the Digital Millennium Copyright Act 1998 (“the Act”), the issue of website liability is addressed under section 512(c) where the general legal position is that websites that allow users to post their own content are protected from liability associated with defamatory or copyrighted materials provided it can be demonstrated that the website is not profiting from use of the infringing materials. Additionally, in order to be protected from liability in respect of abusive, illegal or defamatory conduct, website owners must ensure that they have a facility for reporting abusive conduct and a mechanism to remove offending content and terminate member’s accounts under section 512(c) of the Act. BIBLIOGRAPHY Collins, M. The Law of Defamation and the Internet, (Oxford University Press, 2006) Cortes, P. Online dispute resolution for consumers in the European Union , (Routledge , 2010) Darrel, K. Issues in Internet Law: Society, Technology and the Law. (Amber Book Company, 2009). Michael Deturbide, “Liability of Internet Service Providers for Defamation in the US and Britain: Same Competing Interests, Different Responses” [2003] 3 Journal of Information Law and Technology. LinkedIn user agreement www.linkedin.com/static?key=user_agreement accessed December 2010. Robles, P. (2009). EU: no cookies without consent. Will EU programs be killed? At www.econsultancy.com accessed December 2010. Sideridis, A. Next Generation Society Technological and Legal Issues (Springer, 2010). Sparrow, A. The Law of virtual worlds and Internet social networks, (Gower Publishing Limited, 2010) Wang, F. (2010). Law of Electronic Commercial Transactions: Contemporary Issues in the EU, US and China. Routledge Legislation Children’s Online Privacy Protection Act 1998. Digital Millennium Copyright Act 1998 Electronic Commerce Directive 2000 Consumer Protection (Distance Selling) Regulations 2000 Stop Now Orders (EC Directive) Regulations 2001 Electronic Commerce (EC Directive) Regulations 2002 Privacy and Electronic Communications (EC Directive) Regulations 2003 Regulatory Reform Order 2006 Websites www.europa.eu/legislation_summaries accessed December 2010. www.truste.com accessed December 2010. www.uaecabinet.ae accessed December 2010. Read More