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Legal issues linked to online recruitment
Thibault Verbiest
Attorney-at-law at the Brussels Bar and at the Paris Bar
http://www.ulys.net/[email protected]
First Part Legal issues linked to the protection of databases
Website protectable as an electronic database?
Legal Background
My website protectable as an electronic database?
Copyright Intellectual creation: Berne Convention & TRIPS
Sui generis protectionDirective 96 EC on the legal protection of databases
Unfair Competition
Database Protection
Directive 96 ECScope
Collection of independent works, data or other materialsArranged in a systematic or methodical wayIndividually accessible by electronic or other means
Requirements
A qualitatively and/or quantitatively substantial investment
In either the obtaining, verification or presentation of the database contents
European case law
European Court of Justice 2004
European case law
British Horseracing & Fixtures Marketing Definition of subtantial investment
⇨ Investment independent of that required for the creation of the data
⇨ Exclusion from data created at the same time as its processing
Deep linking
Definition of deep link A link from one website to another that
bypasses the second website's home page and
takes the user directly to an internal page on the site
Deep linking
Deep linking
German case law
German case law : Stepstone
German case: Stepstone v. Ofir (2001)Job advertisements website protectable as databaseDeeplinking
Repeated & systematic distribution or publication of insubstantial parts
Unreasonably prejudices legitime interests of its maker
Dutch & Danish cases law
Dutch case: PCM v. Kranten.com (2000)News website not protectable as databaseCourt held the newspaper had put insufficient effort
into composing the collection of headlines Danish case: Danish Newspaper v.Newsbooster
(2002)News website protectable as databaseDeeplinking infringes database rightRepeated & systematic reproduction and publication
of claimant’s headlines and articles
French case law
French case law
Cadres On-line v. Keljob (2000)Every creation of hyperlinks between websites,
whatever the method used, that would have the consequence of
Rerouting or denaturing the contents of the target site, Making the target site appear as one’s own, without
mentioning the source, notably by not allowing the URL address to be displayed and moreover by displaying its own URL address
Not indicating the user clearly and unequivocally he is being to a site not related to the site
Unfair competition
French case law
Cadremploi v. Keljob (2001)Job advertisements website protectable as databaseExtraction of subtantial parts, evaluated
qualitatively Essential parts of a job offer include:
• Post title• Sector of industry• Geographic zone• Publication date on Cadremploi site• URL address
Infringes database right
American case law
American case law
Ticketmaster v. Microsoft (1997)First major case involving practice of deep linkingDeep links to information on specific events on
interior pages of the websiteSettlement in 1999 where Microsoft agreed not to
provide deep links to Ticketmaster’s site, agreeing instead to link only the Ticketmaster home page
Following this settlement, Ticketmaster allowed deep linking but only after the parties had entered into a linking agreement
American case law
Ticketmaster v. Tickets (2000)Hyperlinking does not invole a violation of the
Copyright Act since no copying is involvedNo breach of contract (terms and conditions on the
Ticketmaster home page that prohibited deep linking)
No facts indicating that tickets.com knew of or agreed to these terms
No unfair comptetion Deep linking by itself (i.e. without confusion of source)
does not necessarily involve unfair competition
Remedies
Technical protection measuresRequiring password accessBlocking requests or links except form certain pre-
approved sitesUse of dynamic (i.e., frequently changing) URLs for
subsidiary pages
Evidence pre-collection (e.a. invisible tracers, Intentional misprints)
Linking Policies & Agreements
Links policy
Second Part privacy issues
Which services do you get with e-recruiting ?
• Search engines : advertisement links
• Newsletters
• Sale of products
• Competitions
-> You always need to register online and fill a form : give personal information (name, address, e-mail, mobile phone number…)
Online forms
European Legal framework
• Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data
• Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)
Codes of Practices
Guidelines for data protection
1) Insert a privacy policy
Guidelines for data protection
2) Declare treatment to national Privacy Commission
3) Determine which data will be collected
-> adequate, relevant and not excessive in relation to the purposes
-> extra information can be collected if the field are not mandatory : use a *
Guidelines for data protection
4) Define the purpose for which you collect the data : data can be collected for specified, explicit and legitimate purposes.
-> users must be informed of which data will be collected and for which purpose.
Guidelines for data protection
5) Transfer of the collected data to third parties (the employer)? YES if :
- Information thereupon is given to users in advance
- The users have given clear and explicit consent
the employer must inform the user/applicant as soon as it receives the data
Guidelines for data protection
6) Update : Give users technical options to change/correct the information previously provided + clear information of this possibility
7) Collect data for a duration determined beforehand –> delete the data at the end of duration/when the purpose is reached
-> users must always have the chance to erase the data
Guidelines for data protection
8) Security : Take all appropriate technical and organizational measures to protect the data against accidental destruction or accidental loss, alteration, unauthorized disclosure and access.
9) Sensitive data : Extra attention should be paid to data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
Guidelines for data protection
10) Cookies : you can use cookies IF you inform the users of :
- What is a cookie
- For which purpose you intend to use it
- How to desactivate/refuse the cookies
Regarding newsletters• Newsletters can be sent if the
users have given prior consent (OPT-IN).
