Privacy issues in firms' Facebook snooping

THE DOMINION POST - 18 APRIL 2012

Readers will have been interested in recent reports from the United States regarding employers asking potential and sometimes current employees for their Facebook login information.

With this login information, an employer can view all of an applicant's photos, conversations and messages as well as other personal information. Potential employers are asking for access to all that is on Facebook including private information that even Facebook friends cannot see.

Catherine Crump, a lawyer for the American Civil Liberties Union, has described the requests by employers for social media login information as akin to opening your postal mail. The employer is essentially asking to go on a fishing expedition through your Facebook pages, seeing if they'll come across any useful information about you.

The ACLU has been advocating on behalf of one man, Robert Collins, on this matter. Collins was a nursing student, father and corrections supply officer with the Maryland Department of Public Safety and Correctional Services.

Collins reportedly took a period of bereavement leave after his mother's death. On his return he was told that if he wanted to be reinstated, he would have to hand over his Facebook password, which was allegedly now standard practice.

Apparently, Collins' employer wanted to check for any gang affiliations.

While Collins complied with this request, he is reported as saying: "My personal communications, my personal posts, my personal pictures, looking at my personally identifiable information, my religious beliefs, my political beliefs, my sexuality – all of these things are possibly disclosed on this page.

"It's absolute total invasion and over-reach."

This story, among others, has sparked intense media interest in recent weeks.

So can a potential or actual employer in New Zealand make such a request of a job applicant or employee? The reality is that if an employer asked a prospective employee for this information and it was refused, there may be problems. If the person was unsuccessful in the role they may never know why they failed to secure employment.

If a job applicant voluntarily gives information about their social media access to an employer and doesn't get the position, they may have potential claims under the Human Rights Act or the Privacy Act that the employer intruded to an unreasonable extent upon their personal affairs.

The rejected employee could argue that the employer's Facebook investigation caused them not to be employed and that it resulted in humiliation. Proving the link between a Facebook entry and failure to obtain employment however, may be difficult.

If a worker gains employment it seems unlikely that they will then challenge the employer's request for and perhaps reliance on Facebook information.

If someone is a current employee and Facebook information is requested by the employer, it would seem that the employee would have more ability to challenge what is occurring.

Again, they may weigh up whether they want to take action. But they would certainly have the potential to argue their employment has been affected to their disadvantage by the employer's allegedly unjustified act.

They could bring a claim before the Employment Relations Authority. There are also avenues for employees (or anyone) to bring claims before the Privacy Commissioner or the Human Rights Commissioner that their privacy has been breached, or that they have been discriminated against.

Employers should also keep in mind that it is a violation of Facebook's terms and conditions for anyone to share their password. At the end of the day, someone could simply delete their Facebook page if they didn't want employers to see it.

Employers and anyone with a social media account will be interested in the recent announcement that New Zealand's privacy laws are to be overhauled to bring them up to date with the huge advancements in technology since the current act was passed in 1993.

Justice Minister Judith Collins has signalled that personal information is private and should not be divulged unnecessarily, but that people now expect more information to be available more quickly. As social media has shown, people are also more likely to share what used to be considered private information.

Emerging employment practices are another good reason for caution to be exercised for those tempted to put it all on Facebook.