1. Legal issues linked to online recruitment Thibault Verbiest Attorney-at-law at the Brussels Bar and at the Paris Bar http://www.ulys.net/ Thibault.verbiest@ulys.net

2. First Part Legal issues linked to the protection of databases

3. Website protectable as an electronic database?

4. Legal Background My website protectable as an electronic database?  Copyright  Intellectual creation: Berne Convention & TRIPS  Sui generis protection  Directive 96 EC on the legal protection of databases  Unfair Competition

5. Database Protection Directive 96 EC  Scope  Collection of independent works, data or other materials  Arranged in a systematic or methodical way  Individually accessible by electronic or other means

6. Requirements  A qualitatively and/or quantitatively substantial investment  In either the obtaining, verification or presentation of the database contents

7. European case law European Court of Justice 2004

8. 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

9. 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

10. Deep linking

12. German case law

13. German case law : Stepstone  German case: Stepstone v. Ofir (2001)  Job advertisements website protectable as database  Deeplinking  Repeated & systematic distribution or publication of insubstantial parts  Unreasonably prejudices legitime interests of its maker

14. Dutch & Danish cases law  Dutch case: PCM v. Kranten.com (2000)  News website not protectable as database  Court held the newspaper had put insufficient effort into composing the collection of headlines  Danish case: Danish Newspaper v.Newsbooster (2002)  News website protectable as database  Deeplinking infringes database right  Repeated & systematic reproduction and publication of claimant’s headlines and articles

15. French case law

16.  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

17. French case law  Cadremploi v. Keljob (2001)  Job advertisements website protectable as database  Extraction 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

18. American case law

19.  Ticketmaster v. Microsoft (1997)  First major case involving practice of deep linking  Deep links to information on specific events on interior pages of the website  Settlement 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

20. American case law  Ticketmaster v. Tickets (2000)  Hyperlinking does not invole a violation of the Copyright Act since no copying is involved  No 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

21. Remedies  Technical protection measures  Requiring password access  Blocking requests or links except form certain pre- approved sites  Use of dynamic (i.e., frequently changing) URLs for subsidiary pages  Evidence pre-collection (e.a. invisible tracers, Intentional misprints)  Linking Policies & Agreements

22. Links policy

23. Second Part privacy issues

24. 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…)

25. Online forms

26. 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)

27. Codes of Practices

28. Guidelines for data protection 1)Insert a privacy policy

29. 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 *

30. 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.

31. 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

32. 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

33. 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.

34. 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

35. Regarding newsletters Newsletters can be sent if the users have given prior consent (OPT-IN).

36. Question? thibault.verbiest@ulys.net