Tuesday 26 July 2011

Google's name policy is not illegal

This is a quick response to a google+ post suggesting that google's "real name" policy is contrary to the Privacy and Electronic Communications (EC Directive) Regulations 2003.

The post is, I'm afraid, quite wrong. The poster relies on regulation 18 which controls the compilation of any "directory of subscribers". It gives various rights which depend on the nature of the directory (telephone or not) and the nature of the person included (individual or corporation) which might allow opting out or require opting in and so on.

Regulation 18 only applies to a "directory of subscribers". The term "subscriber" is defined in regulation 2 to mean "a person who is a party to a contract with a provider of public electronic communications services for the supply of such services". A "public electronic communications service" is defined in section 151 of the Communications Act 2003 to mean "any electronic communications service that is provided so as to be available for use by members of the public" and "electronic communications service" is defined in section 32 of the same act to mean "a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service".

So: google+ is not a public communications provider and hence its members are not subscribers. Regulation 18 does not apply.

As far as I can tell, there is no regulatory reason why google+ should not operate a "real name" policy. They would have to be a little careful about the implementation of the policy within the EU in case they fall foul of European discrimination law. If, for instance, they ended up systematically blocking individuals from one racial group significantly more than those from another because their real names seemed too odd to google employees, that might amount to racial dscrimination. As readers will know, some ethnic groups prefer to have a single name, rather than a forename + surname model.

But that depends on how the policy is implemented, not the policy itself. So I would suggest not contacting the ICO who is already quite busy.


Nicholas Bohm said...

This leaves the interesting question of what a "real name" is.

In English law, your name is any name by which you are known to some reasonable (but uncertain) number of people. Many people (particularly stage artistes and writers) are known to far more people by their stage or writing names than by the name they had from birth, and those adopted names are certainly "real" names.

It may not be easy for Google to prove a violation of its policy, especially after a user has used an adopted name through its service for long enough to have become widely known by it.

Jay Blanc said...

Your interpretation of the law hinges entirely on your declaration that Google+ is not an electronic communication service. Now, under the actual law's definition, that is only the case if you establish that Google+ is only a content server. That's not going to be easy to prove since it allows direct conversations between it's subscribers.

However, Gtalk is clearly an electronic communication service, and all Google+ subscribers are also Gtalk subscribers. (Gtalk is what powers Huddles and Hangouts)

So yes, it does meet the definition of a Subscriber Directory. And of course, I did contact ICO to confirm it needed to be investigated, which they did.

Francis Davey said...

The key question is whether or not section 32(2) is made out, that is whether google+ provides a service which conveys signals via an electonic communications network and on any reasonable construction of s32 it doesn't.

Are you saying that whatever google+ may do, gtalk is a communications service and that google+ is a regulation 18 directory of gtalk? So that anyone signing up to google+ is a gtalk subscriber? That wasn't the point I was responding to.

If that was right, then as I understand it you are saying that google+ is a reg. 18 directory. Since we can withdraw from google+ at any time I can't see that there could be a violation of reg. 18.

Jay Blanc said...

By that same reasoning, the only 'opt out' ever offered for any directory could be to withdraw from the electronic service, so the entire legislation would be moot. I think that we should dismiss that argument as an attempt to vex legislative intent.

Jay Blanc said...

Also, I did mention the Gtalk/Gmail link in the original post I made on this subject.

Jay Blanc said...

For clarity,

Google Profiles is the Directory. This is actually it's own service that pre-dates Google+. Google Profiles were recently switched from allowing private profiles, to only allowing public Profiles. As far as I know, once created it is impossible to disassociate a Google Profile from an account.

Google+ is *a* service that depends and mandates use of Google Profiles and dictates certain "community standards" requiring publication of a person's common name.

Gtalk and Gmail are services that will be associated with a Google Profile. They are also services bundled into Google+ in the use of their 'Huddle' , 'Hangout' and 'Notification' functions.

Jon Peatfield said...

I would assert (and have done on your g+ post) that s32 sub 8 defines conveyance in a way which fairly clearly includes what social networks typically do - route signals to users. You may claim it isn't doing so over a communications network (well technically there is always a network even if it is inside one machine), but they do appear to be routing signals so that they reach one or more users (over a web interface or the internal APIs when using the various mobile-phone apps).

If such things are not communication services, then by some fairly obvious transforms one can construct a VOIP phone system which also would not count as a communication service.

David Gerard said...

Seen this?


I realise it's the Register, but we shall see.