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German government bodies urged to remove their Facebook Pages before next year

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Germany’s federal information commissioner has run out of patience with Facebook.

Last month, Ulrich Kelber wrote to government agencies “strongly recommend[ing]” they to close down their official Facebook Pages because of ongoing data protection compliance problems and the tech giant’s failure to fix the issue.

In the letter, Kelber warns the government bodies that he intends to start taking enforcement action from January 2022 — essentially giving them a deadline of next year to pull their pages from Facebook.

So expect not to see official Facebook Pages of German government bodies in the coming months.

While Kelber’s own agency, the BfDi, does not appear to have a Facebook Page (although Facebook’s algorithms appear to generate this artificial stub if you try searching for one) plenty of other German federal bodies do — such as the Ministry of Health, whose public page has more than 760,000 followers.

The only alternative to such pages vanishing from Facebook’s platform by Christmas — or else being ordered to be taken down early next year by Kelber — seems to be for the tech giant to make more substantial changes to how its platform operators than it has offered so far, allowing the Pages to be run in Germany in a way that complies with EU law.

However Facebook has a long history of ignoring privacy expectations and data protection laws.

It has also, very recently, shown itself more than willing to reduce the quality of information available to users — if doing so further its business interests (such as to lobby against a media code law, as users in Australia can attest).

So it looks rather more likely that German government agencies will be the ones having to quietly bow off the platform soon…

Kelber says he’s avoided taking action over the ministries’ Facebook Pages until now on account of the public bodies arguing that their Facebook Pages are an important way for them to reach citizens.

However his letter points out that government bodies must be “role models” in matters of legal compliance — and therefore have “a particular duty” to comply with data protection law. (The EDPS is taking a similar tack by reviewing EU institutions’ use of US cloud services giants.)

Per his assessment, an “addendum” provided by Facebook in 2019 does not rectify the compliance problem and he concludes that Facebook has made no changes to its data processing operations to enable Page operators to comply with requirements set out in the EU’s General Data Protection Regulation.

A ruling by Europe’s top court, back in June 2018, is especially relevant here — as it held that the administrator of a fan page on Facebook is jointly responsible with Facebook for the processing of the data of visitors to the page.

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That means that the operators of such pages also face data protection compliance obligations, and cannot simply assume that Facebook’s T&Cs provide them with legal cover for the data processing the tech giant undertakes.

The problem, in a nutshell, is that Facebook does not provide Pages operates with enough information or assurances about how it processes users’ data — meaning they’re unable to comply with GDPR principles of accountability and transparency because, for example, they’re unable to adequately inform followers of their Facebook Page what is being done with their data.

There is also no way for Facebook Page operators to switch off (or otherwise block) wider processing of their Page followers by Facebook. Even if they don’t make use of any of the analytics features Facebook provides to Page operators.

The processing still happens.

This is because Facebook operates a take-it-or-leave it ‘data maximizing’ model — to feed its ad-targeting engines.

But it’s an approach that could backfire if it ends up permanently reducing the quality of the information available on its network because there’s a mass migration of key services off its platform. Such as, for example, every government agency in the EU deleted its Facebook Page.

A related blog post on the BfDi’s website also holds out the hope that “data protection-compliant social networks” might develop in the Facebook compliance vacuum.

Certainly there could be a competitive opportunity for alternative platforms that seek to sell services based on respecting users’ rights.

The German Federal Ministry of Health’s verified Facebook Page (Screengrab: TechCrunch/Natasha Lomas)

Discussing the BfDis intervention, Luca Tosoni, a research fellow at the University of Oslo’s Norwegian Research Center for Computers and Law, told TechCrunch: “This development is strictly connected to recent CJEU case law on joint controllership. In particular, it takes into account the Wirtschaftsakademie ruling, which found that the administrator of a Facebook page should be considered a joint controller with Facebook in respect of processing the personal data of the visitors of the page.

“This does not mean that the page administrator and Facebook share equal responsibility for all stages of the data processing activities linked to the use of the Facebook page. However, they must have an agreement in place with a clear allocation of roles and responsibilities. According to the German Federal Commissioner for Data Protection and Freedom of Information, Facebook’s current data protection ‘Addendum’ would not seem to be sufficient to meet the latter requirement.”

“It is worth noting that, in its Fashion ID ruling, the CJEU has taken the view that the GDPR’s obligations for joint controllers are commensurate with those data processing stages in which they actually exercise control,” Tosoni added. “This means that the data protection obligations a Facebook page administrator would normally tend to be quite limited.”

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Warnings for other social media services

This particular compliance issue affects Facebook in Germany — and potentially any other EU market. But other social media services may face similar problems too.

For example, Kelber’s letter flags an ongoing audit of Instagram, TikTok and Clubhouse — warning of “deficits” in the level of data protection they offer too.

He goes on to recommend that agencies avoid using the three apps on business devices.  

In an earlier, 2019 assessment of government bodies’ use of social media services, the BfDi suggested usage of Twitter could — by contrast — be compliant with data protection rules. At least if privacy settings were fully enabled and analytics disabled, for example.

At the time the BfDi also warned that Facebook-owned Instagram faced similar compliance problems to Facebook, being subject to the same “abusive” approach to consent he said was taken by the whole group.

Reached for comment on Kelber’s latest recommendations to government agencies, Facebook did not engage with our specific questions — sending us this generic statement instead:

“At the end of 2019, we updated the Page Insights addendum and clarified the responsibilities of Facebook and Page administrators, for which we took questions regarding transparency of data processing into account. It is important to us that also federal agencies can use Facebook Pages to communicate with people on our platform in a privacy-compliant manner.”

An additional complication for Facebook has arisen in the wake of the legal uncertainty following last summer’s Schrems II ruling by the CJEU.

Europe’s top court invalidated the EU-US Privacy Shield arrangement, which had allowed companies to self-certify an adequate level of data protection, removing the easiest route for transferring EU users’ personal data over to the US. And while the court did not outlaw international transfers of EU users’ personal data altogether it made it clear that data protection agencies must intervene and suspend data flows if they suspect information is being moved to a place, and in in such a way, that it’s put at risk.

Following Schrems II, transfers to the US are clearly problematic where the data is being processed by a US company that’s subject to FISA 702, as is the case with Facebook.

Indeed, Facebook’s EU-to-US data transfers were the original target of the complainant in the Schrems II case (by the eponymous Max Schrems). And a decision remains pending on whether the tech giant’s lead EU data supervisor will follow through on a preliminary order last year to it should suspend its EU data flows — due in the coming months.

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Even ahead of that long-anticipated reckoning in Ireland, other EU DPAs are now stepping in to take action — and Kelber’s letter references the Schrems II ruling as another issue of concern.

Tosoni agrees that GDPR enforcement is finally stepping up a gear. But he also suggested that compliance with the Schrems II ruling comes with plenty of nuance, given that each data flow must be assessed on a case by case basis — with a range of supplementary measures that controllers may be able to apply.

“This development also shows that European data protection authorities are getting serious about enforcing the GDPR data transfer requirements as interpreted by the CJEU in Schrems II, as the German Federal Commissioner for Data Protection and Freedom flagged this as another pain point,” he said.

“However, the German Federal Commissioner sent out his letter on the use of Facebook pages a few days before the EDPB adopted the final version its recommendations on supplementary measures for international data transfers following the CJEU Schrems II ruling. Therefore, it remains to be seen how German data protection authorities will take these new recommendations into account in the context of their future assessment of the GDPR compliance of the use of Facebook pages by German public authorities.

“Such recommendations do not establish a blanket ban on data transfers to the US but impose the adoption of stringent safeguards, which will need to be followed to keep on transferring the data of German visitors of Facebook pages to the US.”

Another recent judgment by the CJEU reaffirmed that EU data protection agencies can, in certain circumstances, take action when they are not the lead data supervisor for a specific company under the GDPR’s one-stop-shop mechanism — expanding the possibility for litigation by watchdogs in Member States if a local agency believes there’s an urgent need to act.

Although, in the case of the German government bodies’ use of Facebook Pages, the earlier CJEU ruling finding on joint law controllership means the BfDi already has clear jurisdiction to target these agencies’ Facebook Pages itself.

It is time to just enforce the #GDPR and not “negociate” compliance whit fundamental rights. They will quickly adapt once they have to.

Good that the German DPA plans to overcome “talk & ignore”, which is still the dominant culture in EU privacy law. 🙄https://t.co/BmlXRXETOG

— Max Schrems 🇪🇺 (@maxschrems) July 1, 2021

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Facebook Adds New Trend Insights in Creator Studio, Which Could Help Shape Your Posting Strategy

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Facebook’s looking to provide more content insight within Creator Studio with the rollout of a new ‘Inspiration Hub’ element, which highlights trending content and hashtags within categories related to your business Page.

Facebook Inspiration Hub

As you can see in these screenshots, posted by social media expert Matt Navarra, when it becomes available to you, you’ll be able to access the new Inspiration Hub from the Home tab in Creator Studio.

At the right side of the screen, you can see the first of the new insights, with trending hashtags and videos from the last 24 hours, posted by Pages similar to yours, displayed above a ‘See more’ prompt.

When you tap through to the new hub, you’ll have a range of additional filters to check out trending content from across Facebook, including Page category, content type, region, and more.

Facebook Inspiration Hub

That could be hugely valuable in learning what Facebook users are responding to, and what people within your target market are engaging with in the app.

The Hub also includes insights into trending hashtags, within your chosen timeframe, which may further assist in tapping into trending discussions.

Facebook Inspiration Hub

How valuable hashtags are on Facebook is still up for debate, but you’ll also note that you can filter the displayed results by platform, so you can additionally display Instagram hashtag trends as well, which could be very valuable in maximizing your reach.

Much of this type of info has been available within CrowdTangle, Facebook’s analytics platform for journalists, for some time, but not everyone can access CrowdTangle data, which could make this an even more valuable proposition for many marketers.

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Of course, overall performance really relates to your own creative, and thinking through the action that you want your audience to take when reading your posts. But in terms of detecting new content trends, including hashtag usage, caption length, videos versus image posts, and more, there’s a lot that could be gleaned from these tools and filters.

It’s a significant analytics addition – we’ve asked Facebook for more info on the rollout of the new option, and whether it’s already beyond test mode, etc. We’ll update this post if/when we hear back.

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Meta Updates Policy on Cryptocurrency Ads, Opening the Door to More Crypto Promotions in its Apps

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With cryptocurrencies gaining momentum, in line with the broader Web 3.0 push, Meta has today announced an update to its ad policies around cryptocurrencies, which will open the door to more crypto advertisers on its platforms.

As per Meta:

Starting today, we’re updating our eligibility criteria for running ads about cryptocurrency on our platform by expanding the number of regulatory licenses we accept from three to 27. We are also making the list of eligible licenses publicly available on our policy page.”

Essentially, in order to run any crypto ads in Meta’s apps, that currency needs to adhere to regional licensing provisions, which vary by nation. With crypto becoming more accepted, Meta’s now looking to enable more crypto companies to publish ads on its platform, which will provide expanded opportunity for recognized crypto providers to promote their products, while also enabling Meta to make more money from crypto ads.

“Previously, advertisers could submit an application and include information such as any licenses they obtained, whether they are traded on a public stock exchange, and other relevant public background on their business. However, over the years the cryptocurrency landscape has matured and stabilized and experienced an increase in government regulation, which has helped to set clearer responsibilities and expectations for the industry. Going forward, we will be moving away from using a variety of signals to confirm eligibility and instead requiring one of these 27 licenses.”

Is that a good move? Well, as Meta notes, the crypto marketplace is maturing, and there’s now much wider recognition of cryptocurrencies as a legitimate form of payment. But they’re also not supported by most local financial regulators, which reduced transaction protection and oversight, which also brings a level of risk in such process.

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But then again, all crypto providers are required to clearly outline any such risks, and most also highlight the ongoing market volatility in the space. This expanded level of overall transparency means that most people who are investing in crypto have at least some awareness of these elements, which likely does diminish the risk factor in such promotions within Meta’s apps.

But as crypto adoption continues to expand, more of these risks will become apparent, and while much of the crypto community is built on good faith, and a sense of community around building something new, there are questions as to how much that can hold at scale, and what that will then mean for evolving scams and criminal activity, especially as more vulnerable investors are brought into the mix.

Broader promotional capacity through Meta’s apps will certainly help to boost exposure in this respect – though again, the relative risk factors are lessened by expanded regulatory oversight outside of the company.

You can read more about Meta’s expanded crypto ad regulations here.

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Meta Outlines Evolving Safety Measures in Messaging as it Seeks to Allay Fears Around the Expansion of E2E Encryption

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Amid rising concern about Meta’s move to roll out end-to-end encryption by default to all of its messaging apps, Meta’s Global Head of Safety Antigone Davis has today sought to provide a level of reassurance that Meta is indeed aware of the risks and dangers that such protection can pose, and that it is building safeguards into its processes to protect against potential misuse.

Though the measures outlined don’t exactly address all the issues raised by analysts and safety groups around the world.

As a quick recap, back in 2019, Facebook announced its plan to merge the messaging functionalities of Messenger, Instagram and WhatsApp, which would then provide users with a universal inbox, with all of your message threads from each app accessible on either platform.

The idea is that this will simplify cross-connection, while also opening the door to more opportunities for brands to connect with users in the messaging tool of their choice – but it also, inherently, means that the data protection method for its messaging tools must rise to the level of WhatsApp, its most secure messaging platform, which already includes E2E encryption as the default.

Various child safety experts raised the alarm, and several months after Facebook’s initial announcement, representatives from the UK, US and Australian Governments sent an open letter to Facebook CEO Mark Zuckerberg requesting that the company abandon its integration plan.

Meta has pushed ahead, despite specific concerns that the expansion of encryption will see its messaging tools used by child trafficking and exploitation groups, and now, as it closes in on the next stage, Meta’s working to counter such claims, with Davis outlining six key elements which she believes will ensure safety within this push.

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Davis has explained the various measures that Meta has added on this front, including:

  • Detection tools to stop adults from repeatedly setting up new profiles in an attempt to connect minors that they don’t know
  • Safety notices in Messenger, which provide tips on spotting suspicious behavior
  • The capacity to filter messages with selected keywords on Instagram
  • More filtering options in chat requests to help avoid unwanted contact
  • Improved education prompts to help detect spammers and scammers in messages
  • New processes to make it easier to report potential harm, including an option to select “involves a child”, which will then prioritize the report for review and action

Meta messaging security options

Which are all good, all important steps in detection, while Davis also notes that its reporting process “decrypts portions of the conversation that were previously encrypted and unavailable to us so that we can take immediate action if violations are detected”.

That’ll no doubt raise an eyebrow or two among WhatsApp users – but the problem here is that, overall, the broader concern is that such protections will facilitate usage by criminal groups, and the reliance on self-reporting in this respect is not going to have any impact on these networks operating, at scale, under a more protected messaging framework within Meta’s app eco-system.

Governments have called for ‘backdoor access’ to break Meta’s encryption for investigations into such activity, which Meta says is both not possible and will not be built into its future framework. The elements outlined by Davis do little to address this specific need, and without the capacity to better detect such, it’s hard to see any of the groups opposed to Meta’s expanded encryption changing their stance, and accepting that the merging of all of the platform’s DM options will not also see a rise in criminal activity organized via the same apps.

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Of course, the counterargument could be that encryption is already available on WhatsApp, and that criminal activity of this type can already be undertaken within WhatsApp alone. But with a combined user count of 3.58 billion people per month across its family of apps, that’s a significantly broader interconnection of people than WhatsApp’s 2 billion active users, which, arguably, could open the door to far more potential harm and danger in this respect.

Really, there’s no right answer here. Privacy advocates will argue that encryption should be the standard, and that more people are actually more protected, on balance, by enhanced security measures. But there is also an undeniable risk in shielding even more criminal groups from detection.

Either way, right now, Meta seems determined to push ahead with the plan, which will weld all of its messaging tools together, and also make it more difficult to break-up its network, if any antitrust decisions don’t go Meta’s way, and it’s potentially pressed to sell-off Instagram or WhatsApp as a result.

But expect more debate to be had, in more countries, as Meta continues to justify its decision, and regulatory and law enforcement groups seek more options to help maintain a level of accessibility for criminal investigations and detection.

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