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I wonder what the legal argument is behind this ruling. If one newspaper acquired another, couldn't the parent then market to the subsidiary's subscribers even
by mikeokner 9y ago
I wonder what the legal argument is behind this ruling. If one newspaper acquired another, couldn't the parent then market to the subsidiary's subscribers even if they continued to operate separately? The parent now owns everything anyway.
- teekert 9y agoThe argument is that WA always told us that they wouldn't share our data. This was a reason people signed up, you can't just "Oops we did it anyway" on so many people. At least not on People who have a government with their best interest in mind.
- mikeokner 9y agoIs there legal precedent for "sharing" when the only entity you're providing the data to is your owner? Presumably if I bought WhatsApp, I would legally be allowed to query some database for someone's phone number if I so chose because I now own the database.
- teekert 9y agoThis piece is a nice argument for what FB/WA did wrong: https://www.engadget.com/2016/08/27/privacy-groups-call-foul-on-whatsapp-sharing-data-with-facebook/ https://www.engadget.com/2016/08/27/privacy-groups-call-foul...
- Brakenshire 9y agoYou do have to get specific permission to use data for a specific purpose under the GDPR. For instance, there are approved forms to ask customers for permission to add them to a mailing list. In that case, whether or not the company has the data stored somewhere is immaterial if it does not have the correct permission to use it for mailing.
- soziawa 9y agoYou could but you'd have to tell the users in the terms of service. If you tell them that you won't query the database and then go on and decide to do so anyways you'd get sued. With WhatsApp having a quasi monopoly on messaging it's difficult for the to change the terms of service without giving their opponents the argument that the change was forced.
- mikeokner 9y agoSure, that makes sense to me. But this seems more like "the company said it wouldn't allow anyone else to query the database" before I bought it. Now that I'm owner, do I still count as "anyone else?" I'd argue not. Edit: that's from a US perspective. Sounds like France (& the EU) put additional restrictions on how personal data may be used even after it's voluntarily provided.
- shakna 9y ago> on how personal data may be used even after it's voluntarily provided. That feels wrong. The personal data was provided under a contract. Now, you can pretend you're Vader and change your deal, but people can still attack you for changing the contract to terms they have not agreed on. And so far in court, long lengthy legalese Terms & Conditions haven't always held up to scrutiny, and nor has any contract that states "we can change these terms at any time". [0] Just buying the database doesn't let you do anything with it - you just bought the responsibility of fulfilling the contract. [0] One example: https://law.justia.com/cases/federal/appellate-courts/ca2/11-1311/11-1311-2012-09-07.html https://law.justia.com/cases/federal/appellate-courts/ca2/11...
- freeflight 9y ago> And so far in court, long lengthy legalese Terms & Conditions haven't always held up to scrutiny, and nor has any contract that states "we can change these terms at any time". [0] Especially not in the EU, many ToS that are completely legal in the US wouldn't see the light of the day in the EU due to consumer protection rights.
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- seszett 9y ago> I now own the database. You might own the database, but you will never own the personal data that is stored in it. And in France (and in the near future the whole EU with GDPR) this personal data has a specific set of allowed uses (explicit or implicit when the user provided the data) attached to it, that you cannot change without asking the owner of the data (the user). So you own the database, but you cannot use the personal data inside for purposes that were not allowed by the user when they provided it.
- mikeokner 9y agoSeems like in that case it should be Facebook being reprimanded if they do something with the data that violates the original terms of use. "Sharing" is a bit misleading because as soon as Facebook acquired WhatsApp, they became the legal owners of the user database and data insofar as anyone can "own" user data. WhatsApp is Facebook.
- cbcoutinho 9y agoBut I think that's the point, WhatsApp doesn't own the data, and that carries over to Facebook. From what I gather, what they own is the database schema and whatever business logic is specific to WA/FB, and they 'lease' the data from users to populate their databases.
- eicnix 9y agoIn the EU you would need the explicit permission of the user to share their data with the new parent company. Which isn't a huge issue since most users will accept any data privacy declaration.
- beberlei 9y agoPer European Privacy Law, you only own the data for the specific use-cases that you asked it for in your terms of use / privacy policy. I agreed to that when signing up. If you change that in the future, you have to ask for my consent again. If I deny, then you cannot use my data for your new use-case.
- cmurf 9y agoIs the revision opt in (express permission required, by default you do not agree)? Or is it opt out (by default you agree, unless you expressly refuse)? In the U.S. terms of service are usually the latter. You'll get a notification of revised terms, and you can refuse. But as a consequence every company I'm aware of will then terminate service. Examples include insurance, banks, and (perhaps infamously) iTunes which had more revisions than the average number of needles on a pine tree. Yes you can send them a note saying you do not agree to their new terms, and they'll send you a note your account is closed.
- JorgeGT 9y agoFrom EU Regulation 2016/679: (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX...) (32) Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject's agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject's consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. (42) Where processing is based on the data subject's consent, the controller should be able to demonstrate that the data subject has given consent to the processing operation.
- vkou 9y ago> Presumably if I bought WhatsApp, I would legally be allowed to query some database for someone's phone number if I so chose because I now own the database. It's not your data. It's your users' data. So no, you may own the database, but you do not own the data.
- briandear 9y agoI don't understand how users own their own data. That doesn't make any sense. Where does that idea come from?
- fatwa 9y agoCommon sense?
- PeterisP 9y agoThe legal concept is that despite having the data in your physical possession and control, you're not allowed to do whatever you want with it, and you have to ask the user's permission for many specific use cases. This means that for a colloquial understanding of "owning data", you don't own it (since you can't do what you want) but they do (since they can limit the uses to what they want).
- vkou 9y agoThe same way that my bank does not own the contents of my savings account... Even if it is allowed to use that money (in highly limited and regulated ways) to, say, issue loans. You don't own your users' data. Your users do. You may be allowed to use it in highly limited and regulated ways.
- kaybe 9y agoPhotography laws are similar. I cannot just see you on the street, shove a camera in your face and take your portrait and then proceed to do whatever I want with the image. The resulting image is property of both the photographer and the subject. (Exceptions for people in the background of landscape/architecture etc and 'people of public interest' such as politicians.)
- phjesusthatguy3 9y agoCorporations are people. Can corporations lie?
- toomuchtodo 9y agoWhen a corporation does it, it's called fraud. Securities fraud if it's a public company.
- cmurf 9y agoIt's fraud in any case, it's just a matter of whether a human or a non-human entity is culpable. By shifting the liability to the corporation, it shifts the cost of wrong doing (ostensibly) from the person who commits it on behalf of the company to the company's shareholders. Goldman Sachs used to be a partnership, not a corporation wih publicly traded shares. They most definitely took fewer risks when the partners were personally liable for wrong doing than once they became a corporation. https://hbr.org/2013/10/culture-not-leverage-made-wall-street-riskier https://hbr.org/2013/10/culture-not-leverage-made-wall-stree...
- cmurf 9y agoCorporations are entities created by the state. They are not people, or citizens. They are made up of people who can lie on their behalf and as such corporations get the culpability whenever officers of that company lie.
- djsumdog 9y agoDid WhatsApp charge anything? I thought for contracts you needed some kind of actual dollar amount (even $1) for it to be binding? Is that very US-law specific or am I way off here?
- danirod 9y agoIt used to be the case. There were yearly subscriptions until some time after Facebook bought the service.
- 1_2__4 9y agoThat's not even a little bit true.
- Waterluvian 9y agoIt's called consideration. It's one of the main tests for a contract.
- WJW 9y agoBut the consideration does not have to in the form of money, it just has to be "worth" something. The considerations in question here are personal information on the users' side and the Whatsapp app+service on the company's side.
- robertocatini 9y agoIn civil law consideration is not required.
- pdpi 9y agoFor a contract to be binding, you need consideration[1] from both parties. A contract where you give me something for nothing is not binding, we both need to be giving each other _something_. That something need not be money: A contract saying that you agree to give me your house if I give you my car would qualify. Google and Facebook extract enough value from targeting ads based on the personal information we agree to give them access to that access to said information is enough to qualify as consideration. I'd argue that, even if WhatsApp doesn't have a monetisation strategy that leverages said information, it's credible enough that it would qualify as consideration. 1. https://en.wikipedia.org/wiki/Consideration https://en.wikipedia.org/wiki/Consideration
- Brakenshire 9y agoFacebook made a commitment they wouldn't connect the data in order to get permission from competition authorities for the merger. I don't know how legally binding that is.
- thg 9y ago> Facebook made a commitment they wouldn't connect the data in order to get permission from competition authorities for the merger. I don't know how legally binding that is. Not quite. They said it's "technically impossible" and the EU fined them for $122M after Facebook did "the impossible" and started sharing WhatsApp data with Facebook. https://www.theatlantic.com/news/archive/2017/05/facebook-receives-122-million-fine-from-the-european-union/527325/ https://www.theatlantic.com/news/archive/2017/05/facebook-re...
- sdfasfdsaf 9y agoThis. When The Coca Cola Company (the folks who own the secret sauce) bought Coca Cola North America (N. America's largest bottler) there was an entire floor that TCCC empoyees weren't allowed into. CCNA had bottling agreements with TCCC's competitors. The restrictions were strict!
- laurentoget 9y agoNot if this data is data about persons according to french law. You need consent from those persons to use the data for any purpose beyond the original purpose you mentioned when you collected the data. sadly this is only in the french wikipedia https://fr.wikipedia.org/wiki/Loi_informatique_et_libert%C3%A9s https://fr.wikipedia.org/wiki/Loi_informatique_et_libert%C3%...
- laurentoget 9y agoThere is a european directive which addresses the same problems, though i do believe the french law is more explicit, and the french government has been enforcing it.
- masklinn 9y ago> If one newspaper acquired another, couldn't the parent then market to the subsidiary's subscribers even if they continued to operate separately? The parent now owns everything anyway. Not in France, personal data is collected with a specified purpose (and bullshit/overly broad "purpose" can get you sued), using said data for other purposes is illegal. You (as a company) never own personal data per-se, you are lent that data by the subject, if you will.
- djsumdog 9y agoI wonder if this means EU users get less creepy specific advertising. I run uBlockOrigin so I don't see many ads, but I've heard cases of Facebook/Adobe/Google algorithms being so good that people see ads for things they've never looked up online, yet talked about out loud (leading many to believe Facebook/Instagram are capturing microphone data). As a side not, this gets into the whole "Right to be Forgotten" which the EFF is mostly against, since in the EU it can be used by many as a form of censorship.
- david-s 9y agoIn what fashion can it be used as a form of censorship?
- bonaldi 9y agoNews organisations have to remove legitimate journalism as a result. The BBC lists it when it happens to them, eg: http://www.bbc.co.uk/blogs/internet/entries/1d0a67ff-ad97-4cde-b183-95c02337596b http://www.bbc.co.uk/blogs/internet/entries/1d0a67ff-ad97-4c...
- shakna 9y agoI'm not entirely convinced, but the argument I've seen is: Politician does something corrupt. Then they order takedown notices across the web, because it is about them personally. The Right to Forget allows them to obscure their dirty deeds.
- freeflight 9y ago
- dboreham 9y agoNote that this: >The parent now owns everything anyway. does not (perhaps surprising to some) allow you to break laws or agreements entered into with other parties without consequences.
- flexie 9y agoWhen doing business in the EU, Whatsapp and whatnot will have to abide by EU legislation, including EU data protection rules, EU consumer legislation and national rules on entering into and interpreting terms and conditions and other contracts. Data may be used only for the purpose it was collected and transfer to other legal entities require consent. In May 2018, the data orotection regulation ebters into force and the mandatory rules will be even tougher. Maybe one day one or more of those companies will even have to pay a bit of tax in the EU.
- briandear 9y agoThey don't pay tax? [citation needed]
- user5994461 9y agoYou never allowed the parent to send you marketing. They shouldn't be allowed to.
- mikeokner 9y agoTell that to my physical mailbox. Or my email inbox.
- juanmirocks 9y agoThe acquisition was approved in Europe on the basis that WhatsApp would not share the data with Facebook. In this case, the European governments certainly have a legal basis to carry with penalties.