Los sistemas de memoria. La memoria declarativa infantil

In order to be able to assess the legal implications of SNSs, it is necessary to understand what SNSs are and how they function. After presenting the history and providing a definition of SNSs, their functioning will be described in detail. Naturally, the aim of Section 1 is not to provide guidance merely on how these sites work, it rather serves as a preparatory Section for addressing privacy and data protection questions: it aims to regroup the mainly descriptive presentation of the characteristics of these sites that can possibly gain importance when it comes to employees’ rights. It will also contribute to better understanding the facts of the relevant cases, analysed in Part II.

§1. The rise of social network sites

The following Paragraphs will focus on (A) the history of SNSs, starting with the brief presentation of two basic concepts inseparable from the functioning of SNSs: Internet and Web 2.0. The topicality and significance of the subject will be illustrated through presenting how popular these services have become. After placing SNSs in this context, (B) it will be defined what exactly SNSs are.

(A) History of social network sites

310. Internet and Web 2.0. According to the statement of András Szekfü, Internet is where computer communication on a global and universal network occurs, in a packet switched system – by the use of TCP-IP protocol – and from the beginning of the 1990s, in a graphic user interface: in the system of World Wide Web.¹⁰⁶⁹ The appearance and the proliferation of the Internet have completely transformed the way people can access information. The Internet as we know today was preceded by various military researches from the 1960s. The World Wide Web was created in 1989 by Tim Berners-Lee in the Conseil Européen pour la Recherche Nucléaire (CERN). From 1991 the access to the network was available to basically any user in education and research and from 1993

1069 Szekfü, A. (2007) Kommunikáció, nyilvánosság, esélyegyenlőség Magyarországon: a távírótól a Web 2.0-ig. Budapest: Gondolat, MTA-ELTE Kommunikációelméleti Kutatócsoport. p. 124.

196 anyone could develop the network.¹⁰⁷⁰ Since then, the Internet has conquered the world:

while in 1995 it had 16 million users worldwide, this number increased up to 3,675 million by September 2016.^{1071, 1072}

311. In addition to the proliferation of the Internet, the appearance and widespread use of Web 2.0 technologies is important for the subject of the dissertation.

Compared to its predecessor, Web 1.0, Web 2.0 enables users to create and share content as opposed to the structure of the static Web 1.0.¹⁰⁷³ Social media and SNSs are connected to Web 2.0 as users themselves fill them up with content within the limits ensured by the server host.^{1074, 1075} Like technological innovations in general, the Internet and Web 2.0 affect privacy and data protection, by placing the sharing of information data to their centre. As Spiros Simitis noted, Internet has redefined how personal data is processed; such processing is shifted to the Internet, as more and more areas of life are taking place online.¹⁰⁷⁶ Robert Sprague also points out how the use of technology changed; today, instead of being merely a source of accessing information, the information sharing nature of the Internet is thriving.¹⁰⁷⁷ The Internet goes beyond being merely a technological innovation and influences everyday life: it revolutionized the way individuals live, share, communicate and consume.¹⁰⁷⁸

1070 Meixner, Z. (2004) Az Internet Rövid Története, HVG. Available at: http://hvg.hu/tudomany/20041203interhist (Accessed: 22 September 2017), Szűts, Z. (2015) ‘A Munka Világának Online Kommunikációs Kérdései’, Opus et Educatio, 2(2), p. 28.

1071 Internet Growth Statistics (no date) Internet World Stats. Available at: http://www.internetworldstats.com/emarketing.htm (Accessed: 16 December 2016)

Regarding users in Europe, Viviane Reading vice president of the EU’s Commission stated that in 1995 at the time of the adoption of the DPD, less than 1% of Europeans used the Internet. [European Commission (2012) Commission proposes a comprehensive reform of data protection rules to increase users’ control of their data and to cut costs for businesses. Press release. Brussels. Available at: http://europa.eu/rapid/press-release_IP-12-46_en.htm(Accessed: 18 January 2019)]

1072 On the history of the Internet see more in: Leiner, B. M. et al. (1997) Brief History of the Internet, Internet Society. Available at: https://www.internetsociety.org/wp-content/uploads/2017/09/ISOC-History-of-the-Internet_1997.pdf (Accessed: 22 September 2017)

1073 The next step of development is the appearance of Web 3.0 (also the so-called semantic web), which is based on the semantic tagging of content, integrated and integrable data. Source: Bányai, E. (2016) Közösségi média. Közösség vagy média? Pécs: Pécsi Tudományegyetem Közgazdaságtudományi Kar. p. 11.

1074 Bozarth, J. (2010) Social media for trainers: techniques for enhancing and extending learning. San Francisco: Pfeiffer, p. 11.

1075 On the main characteristics of Web 1.0, Web 2.0, Web 3.0 and social media see more in: Bányai, E.

(2016) Közösségi média. Közösség vagy média? Pécs: Pécsi Tudományegyetem Közgazdaságtudományi Kar.

pp. 9-36.

1076 Simitis, S. (2010) ‘Privacy - An Endless Debate’, California Law Review, 98(6), p. 2003.

1077 Sprague, R. (2008) ‘Rethinking Information Privacy in an Age of Online Transparency’, Hofstra Labor

& Employment Law Journal, 25(2), p. 396.

1078 Falque-Pierrotin, I. (2012) ‘La Constitution et l’Internet’, Les nouveaux cahiers du Conseil constitutionnel, (36), p. 31.

197

Table 2.: Comparison of Web 1.0 to Web 2.0

WEB 1.0 WEB 2.0

Programmer created web pages, graphics, Flash

User-created Web pages, pictures, user reviews, blogs, wikis, YouTube, social networks

Experts create content Everyone creates content

Individuals visit web pages, read content People construct shared information Tightly controlled “sites” Loosely controlled communities One-way (one-to-many) Many-to-many (and peer-to-peer)

Britannica Online Wikipedia

Publish Participate

Firewalls, hierarchies Dynamic, non-hierarchal

Static, stable content, few changes Constantly updated content (Twitter, Wikipedia)

Source: Bozarth, J. (2010) Social media for trainers: techniques for enhancing and extending learning. San Francisco: Pfeiffer, p. 12.

312. Appearance and rise of SNSs. Although the first SNS, SixDegrees appeared back in 1997,¹⁰⁷⁹ SNSs only became truly widespread in the first decade of the 21^st century. Today’s most known SNSs were launched during the 2000s (for example, MySpace and LinkedIn were launched in 2003, Facebook in 2004, YouTube in 2005, Twitter in 2006, Instagram in 2010 and Snapchat in 2011), and by the 2010s they

“conquered the world”, the most popular of them having several millions of users worldwide (LinkedIn 303 million, Facebook 2.2 billion, YouTube 1.9 billion, Instagram 1 billion, Snapchat 291 million active users).¹⁰⁸⁰ Even though there exists no legal obligation to create a profile on an SNS, the importance of being present on these platforms suggests that it is questioned whether the individual has a true choice regarding engaging in such an activity – especially in certain communities, such as in schools.¹⁰⁸¹

313. (Future) employees as users. Employees do not make an exception from the “SNS fever”: employees and prospective employees use these sites just like any other individual. Today not only students are present on these sites (who will grow up and become young employees one day), but also people of all generations are users of these

1079 boyd, danah m. and Ellison, N. B. (2008) ‘Social Network Sites: Definition, History and Scholarship’, Journal of Computer Mediated Communication, 13(1), p. 214.

1080 Most famous social network sites worldwide as of October 2018, ranked by number of active users (in millions) (2018) Statista. Available at: https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ (Accessed: 4 January 2018)

1081 Síthigh, D. M. (2008) ‘The mass age of internet law’, Information & Communications Technology Law, 17(2), p. 83.

198 sites.¹⁰⁸² It must also be mentioned that SNS use constitutes a “supraglobal” phenomenon:

the most popular SNS platforms are available in most countries worldwide – with very few exceptions.¹⁰⁸³ Although labour law regulations are mainly established at the national level, the behaviour in which employees engage is “supraglobal”: everywhere where employees engage in SNSs, they behave in a similar way – although differences might arise in the legal response according to the given country’s labour law regulations.¹⁰⁸⁴

314. Younger users and the decline of SNSs? In contrast to the popularity of SNSs, certain interesting observations were made in relation to the migration of users towards other platforms, and also in relation to quitting social media completely.

According to a social media use forecast of eMarketer, teenagers and young adults will start to leave Facebook in favour of other social media sites, such as Instagram, or Snapchat.¹⁰⁸⁵ Dailymail has also released an interesting article, describing how teenagers have got tired of social media, wishing it had never been invented and what steps they made towards decreasing their dependence on these platforms.¹⁰⁸⁶ Although with the amount of users they have today it seems unlikely that SNSs will suddenly disappear from one day to another, it should be kept in mind that changes in their use (e.g. migration from one certain SNS to another one) might occur.

1082 On the distribution of Facebook users of different ages see these statistics of 2014: Distribution of active Facebook users worldwide as of 4th quarter 2014, by age (no date) Statista. Available at:

https://www.statista.com/statistics/376128/facebook-global-user-age-distribution/(Accessed: 17 January 2017)

1083 These countries include, for example, China, North-Korea and Iran. Source: List of countries that have banned Social Media for its citizens (no date) The Windows Club. Available at:

https://www.thewindowsclub.com/list-of-countries-that-have-banned-social-media-for-its-citizens (Accessed: 21 October 2019)

1084 However, it is interesting to bring attention to certain possible differences in SNS use between different generations. Usually, younger people have less concern regarding their privacy, and all the content published in these years will be available when they enter the labour market. (Source: Crane, C. (2012) ‘Social Networking v. The Employment- at-Will Doctrine: A Potential Defense for Employees Fired for Facebooking, Terminated for Twittering, Booted for Blogging, and Sacked for Social Networking’, Washington University Law Review, 89(3), pp. 639-640.) William Smith and Deborah Kidder pointed out the significance of the generational difference between the young generations and the older ones and how these differences can influence the labour market situation of young people. (Source: Smith, W. P.

and Kidder, D. L. (2010) ‘You’ve been tagged! (Then again, maybe not): Employers and Facebook’, Business Horizons, 53(5), p. 497.) The generation of those who have grown up with the Internet has a different attitude towards it, expecting that their privacy would be protected in the online world.

(Source: Newell, B. C. (2011) ‘Rethinking Reasonable Expectations of Privacy in Online Social Networks’, Richmond Journal of Law and Technology, 17(4), pp. 18-19.)

1085 Instagram, Snapchat Adoption Still Surging in US and UK - Facebook’s appeal fading further among teens and young adults (2017) eMarketer. Available at: https://www.emarketer.com/Article/Instagram-Snapchat-Adoption-Still-Surging-US-UK/1016369 (Accessed: 10 November 2017)

1086 Harding, E. (2017) Even teenagers are growing tired of social media: Two thirds say they would not mind if it had never been invented, Daily Mail. Available at: http://www.dailymail.co.uk/news/article-4950268/Even-teenagers-growing-tired-social-media.html (Accessed: 10 November 2017)

199 (B) Delimitation of social media and social network sites

Social media and social network sites are similar, but not synonymous concepts.

Both of them are based on Web 2.0 and are centred around user-created content.¹⁰⁸⁷ However, their exact delimitation might differ based on the opinion of different authors, but usually SNSs are considered to be one form of social media.¹⁰⁸⁸

315. Definition of social network sites. When attempting to find a universal definition describing SNSs, one comes across numerous definitions as well.¹⁰⁸⁹ The situation is exacerbated given that different sites can serve different purposes. Establishing one unique definition is also made more difficult by the myriad of the existing SNSs. The thematics of these sites can vary: for example, while Facebook, YouTube, Instagram and Twitter are “general” social network sites (they are destined for everyone, without bearing special thematics), LinkedIn and Viadeo are business centered social network sites, Academia and ResearchGate are for researchers, CouchSurfing is for travellers, etc.

1087 According to the OECD, user-created content is “i) content made publicly available over the Internet, ii) which reflects a certain amount of creative effort, and iii) which is created outside of professional routines and practices.” Vickery, G. and Wunsch-Vincent, S. (2007) Participative Web and User-Created Content.

Web 2.0, Wikis and Social Networking. OECD Publishing. p. 9. See more in Idem. p. 18.

1088 Jue, A. L., Marr, J. A. and Kassotakis, M. E. (2010) Social Media at Work. How Networking Tools Propel Organizational Performance. San Francisco: Jossey-Bass. p. 50.; Klausz, M. (2016) A közösségi média nagykönyve: hogyan vidd sikerre céged és önmagad. Budapest: Athenaeum. p. 71.; Flynn, N.

(2012) The Social Media Handbook. Policies and Best Practices to Effectively Manage Your Organization’s Social Media Presence, Posts, and Potential Risks. San Francisco: Pfeiffer. p. 332.; Kaplan, A. M. and Haenlein, M. (2010) ‘Users of the world, unite! The challenges and opportunities of Social Media’, Business Horizons, 53(1), p. 62.

1089 According to the OECD, social network sites “enable users to connect to friends and colleagues, to send mails and instant messages, to blog, to meet new people and to post personal information profiles.” Vickery, G. and Wunsch-Vincent, S. (2007) Participative Web and User-Created Content. Web 2.0, Wikis and Social Networking. OECD Publishing. p. 38.

Nancy Flynn defines social networks as “online platforms where users create profiles, post content, share information, and socialize with others.” Source: Flynn, N. (2012) The Social Media Handbook. Policies and Best Practices to Effectively Manage Your Organization’s Social Media Presence, Posts, and Potential Risks. San Francisco: Pfeiffer. p. 332.

According to Nathalie Dreyfus, social network sites “[…] are online communication platforms, which allow the user to join or to create a network of users who share a common interest. They stand as a website which, after a registration which is usually free and requires providing information (name, birthday, e-mail address), allows to access a platform of exchange and dialogue.” Cited in: Costes, L. (2011) ‘Réseaux sociaux : nouveaux enjeux et nouveaux défis pour les entreprises’, Revue Lamy droit de l’immatériel ex Lamy droit de l’informatique, (74), p. 132.

After analysing the arising legal challenges and the given answers in relation to law and social network sites, Valère Ndior proposes the following legal definition, according to which “the common essential criteria of social networks would be to constitute a web hosting platform, which act as technical intermediate in order to provide to the public, for personal or for professional reasons, means and spaces of communication or interaction with other users. The owner of the social network account act as content publisher on a profile presumed to constitute a public space, except if the owner demonstrates that the contacts who he/she approved constitute a community of interest within which the data published remains under his/her control.”

Source: Ndior, V. (2015) ‘Le réseau social : essai d’identification et de qualification’, in Ndior, V. (ed.) Droit et réseaux sociaux. Issy-les-Moulineaux: Lextenso (Collection LEJEP) p. 35.

200 National SNSs also exist, destined for people living in a given region or country, such as the late iwiw in Hungary, Copains d’avant in France, Weibo in China or Mixi in Japan.¹⁰⁹⁰

316. Ludovic Pailler identified two reference definitions: for US scholars it is the one defined by danah m. boyd¹⁰⁹¹ and Nicole B. Ellison, while European scholars mostly refer to the definition established by the WP29.¹⁰⁹² According to danah m. boyd and Nicole B. Ellison, social network sites are “[…] web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.”^{1093, 1094} Based on the definitions established in the article of boyd and Ellison, Dick Stroud proposes to create a “checklist”

with the main elements of these sites. These elements are: a) possibility to create private or public profiles b) identifying a network of contacts c) messaging, communicating with the contacts d) content sharing such as photos or videos e) add-value content.¹⁰⁹⁵

According to the WP29, social network services are “[…] online communication platforms which enable individuals to join or create networks of like-minded users.”¹⁰⁹⁶ The WP29 complements this definition by identifying three common characteristics of social network sites: (1) users share their data in order to create profiles or a description of themselves, (2) possibility of posting user-generated content, such as videos, photos, etc.

(3) providing a list of contacts and possibility to interact with these contacts.¹⁰⁹⁷ Lamia El Badawi also proposes to identify the common characteristics of SNSs, which are – in my

1090 See more on the different types of social network sites in: Ndior, V. (2015) ‘Le réseau social : essai d’identification et de qualification’, in Ndior, V. (ed.) Droit et réseaux sociaux. Issy-les-Moulineaux:

Lextenso (Collection LEJEP), pp. 17-19. and Clarke, R. (2014) ‘Privacy and Social Media: An Analytical Framework’, Journal of Law, Information and Science, 23(1), p. 172.

1091 danah m. boyd writes her name in lower case on purpose. See: boyd, danah m. (2017) ‘what’s in a name?’, https://www.danah.org/name.html.

1092 Pailler, L. (2012) Les réseaux sociaux sur internet et le droit au respect de la vie privée. Bruxelles:

Larcier. pp. 16-17.

1093 boyd, danah m. and Ellison, N. B. (2008) ‘Social Network Sites: Definition, History and Scholarship’, Journal of Computer Mediated Communication, 13(1), p. 211.

1094 Based on this definition, the Council of Europe states that “[a] social networking service is a platform which enables the building of social relations among people who share interests, activities, backgrounds or real-life connections. It is a web-based service that allows individuals to create a profile, to establish a list of users with whom to share views and to develop contacts within the system.” Source: Council of Europe, Committee of Ministers (2015) Explanatory memorandum to Recommendation CM/Rec(2015)5 of the Committee of Ministers to member States on the processing of personal data in the context of employment.

par. 45.

1095 Stroud, D. (2008) ‘Social networking: An age-neutral commodity — Social networking becomes a mature web application’, Journal of Direct, Data and Digital Marketing Practice, 9(3), p. 279.

1096 WP29 (2017) Opinion 2/2017 on data processing at work. 17/EN WP 249. p. 4.

1097 WP29 (2017) Opinion 2/2017 on data processing at work. 17/EN WP 249. p. 5.