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Social networks such as Facebook, Twitter or Instagram have become an essential part of the professional and private information and communication behavior of many citizens. Public authorities are also increasingly using social networks or are planning to do so in the future: security authorities would like to use Twitter to provide up-to-date short notices to participants in meetings, municipalities use Facebook to draw attention to their tourist offerings and answer inquiries about them, and quite a few public authorities recruit their junior staff via social networks.
While the use of social networks by citizens is left to their discretion, public authorities are subject to a wide range of legal obligations and also have a role model function. Data protection experts have repeatedly warned of this, but have (too) rarely been heard. The guidance provided by the State Commissioner for Data Protection and Freedom of Information of Baden-Württemberg is intended to take into account the interests of public bodies in using data as well as the data protection limits that exist for public bodies.
Social networks are often tiered provider relationships in which the respective information or communication service is offered on a platform. The user is therefore confronted with the respective content provider, who uses the platform to present himself, post content there or comment on it (this now also includes public bodies), and the respective platform operator. This makes social networks difficult to understand from the user's perspective and often problematic from a legal perspective, especially with regard to data protection responsibilities. Especially in the case of non-European platform operators/providers, fundamental legal questions are ultimately not clarified. It is obvious that there are further rules to be observed here for public institutions, for example in the case of contractual links to monopolists in the area of Internet communications. In any case, the State Commissioner for Data Protection and Freedom of Information (LfDI) sees a joint responsibility under data protection law for public institutions that use social networks as part of their task fulfillment, since it is only through their offerings in social networks that corresponding usage data is created that can be processed by the respective platform operator. This responsibility gives rise to legal obligations on the part of the public institutions.
The following also applies to the use of social networks by public authorities: no opportunity without limits. State and local authorities are subject to a constitutional obligation to comply with the law (principle of the rule of law) and have a special responsibility due to their function as social role models - also in the use of social networks. In view of the obvious deficits in data protection law in a number of social networks, public bodies should in the future gear their offerings there to data economy in the processing of usage data and to actively informing users about the risks to their personal data that have been addressed. The lack of objection options on social networks themselves must be compensated for by measures taken by public agencies such as information and education, a reference to personal responsibility for use and the offer of alternative communication channels, in order to enable users to actually take control of their own data.
In principle, access to information provided by the public body must not be dependent on prior registration with a social network. Apart from the the social network, the information provided must therefore always be available via an alternative route. Under no circumstances may a situation arise in which users are induced to use a social network solely because they can only obtain certain government or municipal information there.
This document contains excerpts from the official "Guideline of the LfDI on the use of social networks by public bodies (2017, revised 2020)" from the State Commissioner for Data Protection and Freedom of Information of Baden-Württemberg, with whose institution we are already in personal contact and have received express permission to quote. For even more detailed information on the subject, we recommend the relevant Original document.