Social media: is there a right to privacy?

By Mike Emmott, Public Policy Adviser, Employee relations, CIPD

The short answer is no.  The European Convention on Human Rights provides that “everyone has the right to respect for his private and family life”.  However the House of Lords has held that there is no cause of action under English law for invasion of privacy.

So how far are employers entitled to access candidates’ online profiles when considering job applications? According to CIPD’s latest social media research, two in five employers say they look at candidates’ online activity in order to inform recruitment decisions.  But the legal implications of rapidly developing practice in this area are not yet clear. 

>Employers should not go on “fishing expeditions”, but should confine their searches to information that is directly relevant to the job

The Data Protection Act says that anyone who processes personal information must make sure that it complies with a number of principles.  But neither the legislation nor the Employment Code drawn up by the Information Commissioner deals explicitly with the awkward issues posed by the explosion of information about individuals now accessible on the web. 

We might therefore want to look at law and practice in other countries to see which way the wind is blowing, and how we might expect to see the situation develop in the UK.  Are employers allowed to search social media or other websites as part of undertaking pre-employment checks? 

Data protection legislation in Germany is quite specific.  Employers can collect data through online searches only if the data is employment-related and either the candidate has given his valid consent or the data is publicly available.  If it is clear that the data has been made public without the candidate’s consent, or if its existence is outside his control, the employer cannot make use of it.

A distinction is drawn between data stored on networks that are mainly private or business-related.  Facebook is an obvious example of the former, while LinkedIn is typical of the latter.  However the line can be blurred: it may be difficult for example to be sure in specific cases what is the expectation of privacy about Facebook pages accessible to “friends”.  

Privacy legislation in Australia states that, wherever possible, personal information should be obtained directly from the data subject.  Sensitive information, including information about health or religious beliefs, should not be collected at all unless the subject has consented or there is a legal reason to collect it. 

In general, employers in the United States are free to search the web, including social media, and to ask candidates for their Facebook password as part of the recruitment process.  However six states, including California, Maryland and Illinois, have now passed legislation banning employers from demanding social media passwords from employees and job applicants.  Discrimination claims can arise if employers discover information about applicants’ protected class (eg race, religion or disability).  There may also be issues about whether online searches are “unfair surveillance” in violation of the National Labor Relations Act. 

The broad conclusion is that law and practice in a number of countries are currently more restrictive than in the UK.  The CIPD guide to pre-employment checks will hopefully help employers adopt the kind of policies that will stand them in good stead as UK law continues to evolve. 

The guide contains a long list of recommendations about good practice in relation to accessing social media.  Crucially, employers should not go on “fishing expeditions”, but should confine their searches to information that is directly relevant to the job.  They should be open about what they are doing.  And they should bear in mind that information they may find on the web is not necessarily accurate. 

The full pre-employment checks guide is available here

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