“Club­house”: can com­pa­nies use the app while adhe­ring to the GDPR?

The “Club­house” app is a social net­work which func­tions pri­ma­ri­ly via live pod­casts. Users of the app can get tog­e­ther in “club­hou­ses” for lar­ger online chats or enga­ge in indi­vi­du­al exch­an­ges. Alt­hough the app is only available for iOS at the moment and alt­hough users need a per­so­nal invi­ta­ti­on to use the app, in addi­ti­on to down­loa­ding the app from the Apple app store , the num­ber of users is gro­wing rapidly all over the world. For now, the majo­ri­ty of “Club­house” users appear to be pri­va­te users, but the app is also of inte­rest to com­pa­nies, poli­ti­ci­ans, pri­va­te orga­niza­ti­ons and event orga­ni­zers becau­se it has the poten­ti­al to be used e.g. for mar­ke­ting pur­po­ses or for cus­to­mer communication.

Cri­ti­cism of data pri­va­cy practices

But as the app’s popu­la­ri­ty has grown, we are also begin­ning to hear cri­ti­cism clai­ming that “Club­house” poses a thre­at to data pri­va­cy. Among the app’s cri­tics is Moni­ka Grethel, Com­mis­sio­ner for Data Pro­tec­tion of the Fede­ral Sta­te of Saar­land, who not only made a cri­ti­cal state­ment about the app to Wirt­schafts­Wo­che maga­zi­ne (only in Ger­man) but also named “three ques­tionable aspects in terms of data pro­tec­tion law” to the Tages­schau news orga­niza­ti­on (only in Ger­man) via an offi­ci­al spo­kes­man. In the­se state­ments, Saarland’s data pro­tec­tion aut­ho­ri­ty cri­ti­ci­zes the fact that the app can access users’ cont­act infor­ma­ti­on, its fail­ure to estab­lish clear rules for the hand­ling of per­so­nal data and its recor­ding of users’ con­ver­sa­ti­ons.

The fol­lo­wing assess­ment in terms of data pro­tec­tion law is inten­ded to con­sider the ext­ent to which this cri­ti­cism is jus­ti­fied, as well as exami­ning other aspects of the app which may be problematic.

1. Abili­ty of “Club­house” to access users’ cont­act information

The app does not neces­s­a­ri­ly need to access users’ cont­act infor­ma­ti­on, so that the state­ments below do not stand in the way of using the app, in theo­ry. Howe­ver, tho­se who want to send an invi­ta­ti­on to ano­ther user have to allow the app to access the address book of the smart pho­nes they are using. When they do so, their cont­act infor­ma­ti­on is trans­mit­ted to “Club­house,” which then pro­ces­ses this infor­ma­ti­on for many dif­fe­rent pur­po­ses (cf. Club­house Pri­va­cy Poli­cy, No. 2). Accor­ding to media reports (only in Ger­man), one use of the uses of this infor­ma­ti­on is appar­ent­ly to crea­te “shadow pro­files,” i.e. to store infor­ma­ti­on about data sub­jects who have not even regis­tered with “Club­house.” The lat­ter use in par­ti­cu­lar must be regard­ed cri­ti­cal­ly, in view of the fact it would hard­ly be pos­si­ble to estab­lish a legi­ti­ma­te inte­rest (Artic­le 6(1)(f)) of the GDPR) in the pro­ces­sing of non-user data (for details see: Hessel/Leffer, Whats­App im Unter­neh­men?, CR 2020, 139–144) (only in Ger­man). The app also can access the cont­act infor­ma­ti­on of users who link their Twit­ter and/or Insta­gram accounts to the app. Clubhouse’s pri­va­cy poli­cy says the fol­lo­wing on this sub­ject: “When you crea­te your account, and/or authen­ti­ca­te with a third-party ser­vice like Twit­ter, we may coll­ect, store, and peri­odi­cal­ly update infor­ma­ti­on asso­cia­ted with that third-party account, such as your lists of fri­ends or fol­lo­wers.” (cf. Club­house Pri­va­cy Poli­cy, No. 1 – Per­so­nal Data Coll­ec­ted from Third Parties/Publicly Available Sources). In this case as well, the app makes exten­si­ve use of the users’ cont­act and pro­fi­le infor­ma­ti­on which can­not be tra­ced individually.

2. Unclear rules on the hand­ling of per­so­nal data

Based on the examp­les cited in which Clubhouse’s pri­va­cy poli­cy is unclear, the cri­ti­cism by Saarland’s data pro­tec­tion aut­ho­ri­ty cer­tain­ly appears to be jus­ti­fied, alt­hough this can chan­ge if “Club­house” revi­ses its pri­va­cy poli­cy in the future. But it should also be noted that the cri­ti­cism of Clubhouse’s pri­va­cy poli­cy as unclear is not cor­rect in every case. For exam­p­le, some cri­tics have clai­med that the app fails to give users the opti­on of dele­ting their account (only in Ger­man), but the app’s pri­va­cy poli­cy does make a clear state­ment in this regard (cf. Club­house Pri­va­cy Poli­cy, No. 5).

3. Recor­ding of conversations

The accu­sa­ti­on that “Club­house” records all user con­ver­sa­ti­ons is a serious char­ge. But an exami­na­ti­on of the app’s pri­va­cy poli­cy reve­als that recor­dings are not stored after the mee­ting is over unless the­re is a vio­la­ti­on of the terms of use (cf. Club­house Pri­va­cy Poli­cy, No. 1 – Per­so­nal Data You Pro­vi­de). Accor­ding to the pri­va­cy poli­cy, the data coll­ec­ted by the app are stored sole­ly for the pur­po­se of inves­ti­ga­ting such inci­dents and the app never records data for muted spea­k­ers or audi­ence mem­bers. In light of the­se cir­cum­s­tances, the tem­po­ra­ry sto­rage of audio recor­dings appears to be far less cri­ti­cal from the view­point of data pro­tec­tion law, par­ti­cu­lar­ly sin­ce use of such recor­dings is strict­ly limi­t­ed to the docu­men­ta­ti­on and inves­ti­ga­ti­on of brea­ches of con­tract in the rela­ti­onship bet­ween “Club­house” and users. 

Data trans­fer to the US

The “Club­house” app is ope­ra­ted by the US com­pa­ny “Alpha Explo­ra­ti­on Co., Inc.,” based in San Fran­cis­co. Clubhouse’s pri­va­cy poli­cy sta­tes as fol­lows with regard to inter­na­tio­nal data trans­fers: “By using our Ser­vice, you under­stand and ack­now­ledge that your Per­so­nal Data will be trans­fer­red from your loca­ti­on to our faci­li­ties and ser­vers in the United Sta­tes, and whe­re appli­ca­ble, to the ser­vers of the tech­no­lo­gy part­ners we use to pro­vi­de our Ser­vice.” (cf. Club­house Pri­va­cy Poli­cy, No. 10 – Inter­na­tio­nal Users). This pas­sa­ge does not con­sti­tu­te a valid decla­ra­ti­on of con­sent, which would allow a data trans­fer to third count­ries in accordance with Artic­le 49(1)(a) of the GDPR even in the absence an ade­quacy decis­i­on or other safe­guards. For one thing, the con­sent of the data sub­ject must be “expli­cit,” which is not the case here. The argu­ment that the data trans­fer to the US is neces­sa­ry for per­for­mance of the user agree­ment bet­ween “Club­house” and its users must be view­ed rather cri­ti­cal­ly in light of the ongo­ing con­tro­ver­sy as to whe­ther regu­lar data trans­fers to third count­ries can even be jus­ti­fied based on Artic­le 49 of the GDPR. Moreo­ver, “Club­house” has not even named a repre­sen­ta­ti­ve in the EU yet, alt­hough the com­pa­ny is requi­red to do so in accordance with Artic­le 27 of the GDPR as a con­trol­ler which is not estab­lished in the EU.

Impact on use

To the ext­ent that an assess­ment of the “Club­house” app can be made at this time, the cri­ti­cism that the app fails to com­ply with all of the requi­re­ments of the GDPR is cer­tain­ly cor­rect. But this does not mean that using the app would be imper­mis­si­ble, sin­ce the requi­re­ments in the GDPR gene­ral­ly app­ly only to tho­se who deter­mi­ne the means and pur­po­ses of data pro­ces­sing, and sin­ce it makes excep­ti­ons e.g. in cases whe­re data are pro­ces­sed for per­so­nal pur­po­ses. In order to deter­mi­ne who would be respon­si­ble for pos­si­ble data brea­ches at “Club­house,” it is the­r­e­fo­re first neces­sa­ry to distin­gu­ish bet­ween per­so­nal and com­mer­cial use of the app.

In accordance with Artic­le 2(2)© of the GDPR, the GDPR does not app­ly to per­so­nal use in cases whe­re per­so­nal data are pro­ces­sed exclu­si­ve­ly for per­so­nal or house­hold acti­vi­ties. Accor­din­gly, as long as “Club­house” is used sole­ly for pri­va­te com­mu­ni­ca­ti­ons, users are gene­ral­ly not requi­red to satis­fy the strict requi­re­ments of the GDPR, alt­hough “Club­house” its­elf remains sub­ject to the­se requi­re­ments (Reci­tal 18 to the GDPR). For this reason, the Bava­ri­an Data Pro­tec­tion Aut­ho­ri­ty for the Pri­va­te Sec­tor even con­siders the use of Whats­App by pri­va­te asso­cia­ti­ons to be per­mis­si­ble “in most cases.” (only in Ger­man) But even the house­hold exemp­ti­on has its limits. For exam­p­le, the Euro­pean Court of Jus­ti­ce (ECJ) has ruled in the past that pro­ces­sing can­not be jus­ti­fied by the con­nec­tion to per­so­nal or fami­ly life, par­ti­cu­lar­ly in cases whe­re per­so­nal data are published online. As a result, e.g. the trans­fer of cont­act infor­ma­ti­on from users’ address books to “Club­house” is not enti­re­ly unpro­ble­ma­tic from a legal stand­point. But in prac­ti­ce, the risk that pri­va­te users will get in trou­ble with the data pro­tec­tion aut­ho­ri­ties is pro­ba­b­ly low.

Howe­ver, this “house­hold exemp­ti­on” does not app­ly if “Club­house” is being used for busi­ness pur­po­ses. As a result, com­pa­nies which pro­cess data via the app are requi­red to adhe­re to the requi­re­ments of the GDPR, as well as facing a par­ti­cu­lar chall­enge: for the moment, at least, the app does not allow com­mer­cial use (cf. Con­di­ti­ons of Use, User Con­duct, No. 1). While it is rather unli­kely that “Club­house” would take legal action against com­pa­nies which use the app, it is evi­dent from the cur­rent terms of use that the app is not desi­gned for use by com­pa­nies. Accor­din­gly, the­re is no clear divi­si­on of respon­si­bi­li­ties in terms of data pro­tec­tion law, which is pro­ble­ma­tic in view of a pos­si­ble joint con­trol­ler arran­ge­ment in terms of Artic­le 26(1) of the GDPR, which would come into con­side­ra­ti­on for at least some of the data pro­ces­sing acti­vi­ties in con­nec­tion with use of “Club­house.” Com­pa­nies should also keep in mind that not only their cus­to­mers’ data will be pro­ces­sed when they use “Club­house,” but also the data of their employees, such as tho­se in the sales or mar­ke­ting depart­ments. Howe­ver, they can address this pro­blem by obtai­ning the con­sent of the affec­ted employees.

Con­clu­si­on and recom­men­da­ti­on for companies

The­re is room for impro­ve­ment in the “Club­house” app from the view­point of data pro­tec­tion law. Accor­din­gly, com­pa­nies which are thin­king about using the app for busi­ness pur­po­se should under­ta­ke an inten­si­ve legal review in order to avo­id get­ting in trou­ble with the data pro­tec­tion aut­ho­ri­ties and/or dama­ge claims from cus­to­mers and employees. Some of the pro­blems, such as allo­wing access to cont­act infor­ma­ti­on, can be avo­ided through effec­ti­ve tech­ni­cal design. But cle­ar­ly the­re are still risks asso­cia­ted with use of the app, as is the case for many other ser­vices as well. Nevert­hel­ess, tho­se who would like to have more legal cer­tain­ty can anti­ci­pa­te that, as the app con­ti­nues to be deve­lo­ped, it will fea­ture a more privacy-friendly design.

If your com­pa­ny is con­side­ring the pos­si­bi­li­ty of using “Club­house” or other social net­works for busi­ness pur­po­ses, we would be glad to assist you. We are also available to ans­wer ques­ti­ons from the media about data pri­va­cy in the “Club­house” app.


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