Wednesday, November 28, 2018

LinkedIn, and the GDPR age

I should start this post by saying I’m neither a lawyer, nor a GDPR expert.  Possibly both of those facts will become massively apparent in the text that follows.

Also, I’m not a LinkedIn Premium user - so it’s possible I’m missing something obvious by not having access to it.

But anyway, I’ve been thinking about how LinkedIn fits into a GDPR world, and it doesn’t something doesn’t seem quite right to me at the moment.

LinkedIn are in the data business, and they’re very good at protecting that asset.  They tend to be (quite rightly) pro-active in stopping people from extracting data from their systems and pushing it into their own systems.

As such, businesses (recruiters particularly) are encouraged to contact directly within LinkedIn, and they are offered tools to discover people and commence that communication.

Unfortunately, this lack of syncing between LinkedIn and in-house systems can cause a big problem with GDPR.

That is:
What happens if someone says to a recruitment organisation - “Please forget me, and do not contact me again”

In this situation, the organisation is obliged to ‘remove' them from their systems.

At some point in the future another recruiter from the same organisation then finds the person on LinkedIn, without reference to their own systems and messages them using LinkedIn.

What happens next?

By the letter of the law, the organisation may not have done anything wrong.
  • The person is no longer in the organisation’s system, they were found on LinkedIn.
  • The person was not sent an e-mail, or phoned, they were messaged within LinkedIn.
  • The person has consented to have their data held by LinkedIn for the expressed purpose of being contacted by potential recruiters via the platform.

With all this in mind, it may be interpreted that it’s fair game to contact anyone on LinkedIn, regardless of their expressed desire not to be contacted by a particular company.

However, whilst this may be within the definition of the law, it’s pretty clear it’s not in the spirit of the law.

Note - Again I’m not a GDPR expert, nor a lawyer, so can't say for certain that it IS within the definition of the law - nor am I asserting that it is - just that I can imagine that it might be interpreted that way by some people.

And this is where things get complicated for LinkedIn.  I can see a few outcomes of this, but two of them could be extremely worrying for the future on LinkedIn.

Scenario - LinkedIn Premium is seen as an extension of a subscribing organisation’s IT systems.

It could be argued that, whilst LinkedIn is in independent entity, when they provide services to another organisation, their systems then become part of the remit of that subscribing organisation.

I.E. within LinkedIn, any action by a user and the storage of data of that action falls solely within the responsibility of the employer of the user that performs that action.  LinkedIn are not responsible for the use of the data in any way.

On first glance, this looks ideal to LinkedIn - no responsibility!

However, that’s not true - if there’s ever a test case that proves this point, then suddenly LinkedIn becomes a big risk to any organisation that uses it.

Over the course of the last 2 years or so, every data holding organisation in the EU has looked carefully at their data retention and use policies and systems and done what they can to protect themselves - in may cases I’m sure they have changed suppliers and systems since the existing systems have not proven up to scratch in the light of GDPR legislation.

Up to now, I’m not sure that many people have scrutinised LinkedIn in the same way.

At the moment it might be argued that LinkedIn is not supplying the tools to subscribers to allow them to comply with the GDPR legislation.  For example, I’m not aware of any functionality that allows an organisation to state "I wish to completely forget this person, and ensure that I cannot connect, view data on or contact them without their expressed consent”.  If that’s a minimum requirement of any internal system, why would it not be a minimum requirement for LinkedIn?

It could be that once that test case comes, a lot of organisations will take a look at LinkedIn and decide it doesn’t stand up, and it’s no longer worth the risk.

Scenario - LinkedIn, as the data controller, is responsible for the contact made by any users within the system.

This is potentially even worse for LinkedIn.  Since LinkedIn hold the data about people, provide the tools for discovering those people, provide the tools for contacting people, and for relaying those messages, it may be argued that it is up to LinkedIn to provide the mechanism to allow Users to state that they do not wish to be visible to or contacted by a given organisation.

That is, whilst it is another user who is sending the message, it may be that a future test case could state that LinkedIn are responsible for keeping track of who has ‘forgotten’ who.

By not providing that mechanism, and allowing users on the system to make contact when the contact is not welcome and against the target’s wishes, it’s possible that LinkedIn could be argued as being responsible for the unwelcome contact and therefore misuse of data.


Today, it seems that LinkedIn is in a bit of limbo.

There may be a recognised way to use LinkedIn in the GDPR era - find someone, check in my system that I’m allowed to contact them, go back to LinkedIn and contact them - but in order for that to work it requires the due diligence of recruiters to ensure that the law isn’t broken.

Realistically, something will have to change, or that test case is coming; at some point, someone is going to get an email that is going to break the limbo.

When that happens, I wonder which way it will go..?