With the recent provision of 16 September 2021 [doc. web n. 9705632], the Guarantor Authority for the protection of personal data has considered the processing of data unlawful by those who use the Linkedin social network to send messages to users by promoting their goods or services.
It all started from the complaint made by a user registered on Linkedin who reported receiving a message from an agency to promote their services in reference to a specific property owned by the complainant.
As emerged during the investigation, the agency had previously identified the ownership of the aforementioned property through access to the public real estate register, to then promote their services to the owner through a private message on Linkedin.
The road taken by the Guarantor in order to identify the legitimacy or otherwise of a treatment of this type was to verify the conditions of service of Linkedin.
As for other social networks, it is in fact in the terms of service accepted at the time of registration that the boundaries for the processing of one's data must be identified.
On the basis of these contractual conditions, the user's expectations have been formed regarding the use of the social network also by other members. The execution of the service contract constitutes the legal basis for data processing.
Communications made and received within social networks must therefore also be aimed solely at what is established in the conditions of use.
With reference to the present case, the contractual conditions of Linkedin, according to the Guarantor, describe a platform that aims to "connect individuals who share the same professional interests to facilitate the exchange of knowledge or job opportunities. On the other hand, it is not envisaged that Linkedin users can use the platform to send messages to other users with the aim of selling products or services even if this consists of, evidently, your work ".
In this context, it does not detect the fact that a user's profile is set up to receive messages from anyone because what matters is the purpose – in this promotional case – for which the message was sent. This purpose is in contrast with that described in the contractual conditions for joining the social network, the only one that the interested party can foresee.
Taking note of the rigorist position taken by the Guarantor, identifying the boundary between the "purpose of selling products or services" and "putting individuals who share the same professional interests in contact to encourage the exchange of knowledge or job opportunities" is not very simple.
The above also considering that the contractual terms and conditions of Linkedin and the "LinkedIn Professional Community Policies" are not as detailed and restrictive as it seems to emerge from the reading of the Guarantor.
For sure, this interpretation, inspired by prudence, it allows to establish a clearer distinction between the different social networks and their constitutive purposes.
The provision also focuses on access to real estate registers which made it possible to identify ownership of the property. What is contestable is not the acquisition of the data for the verification of ownership of a property but the subsequent use of that data for a purpose - promotion of services – which is not among those for which the public register was established.
In conclusion, both the real estate register and Linkedin, they have been used for commercial promotion purposes despite being set up for other purposes, different and incompatible with the first.
The conduct described has therefore resulted in the processing of data - concretized in the collection of the data and in the sending of a message for promotional purposes – took place in the absence of a suitable legal basis, not being attributable to any of the conditions of lawfulness referred to in art. 6, through. 1 of the Regulation. It is interesting to note that the sanction of the Guarantor was imposed in particular by virtue of the conduct of the company which has not repeatedly encountered requests for information from the Office, resulting in a burden on the preliminary investigation and necessitating the intervention of the Guardia di Finanza with an increase in the associated costs.
Scientific contribution of’Lawyer. Laura Priore