Jusletter IT

Data Protection at Work: The Workers’ Privacy and the Use of Online Social Networks in Hiring Decisions

  • Author: Teresa Coelho Moreira
  • Category: Articles
  • Region: Portugal
  • Field of law: Data Protection
  • Collection: Tagungsband-IRIS-2013
  • Citation: Teresa Coelho Moreira, Data Protection at Work: The Workers’ Privacy and the Use of Online Social Networks in Hiring Decisions, in: Jusletter IT 20 February 2013
The world in general and labour law specifically has been suffering in the last years countless changes related with the enormous increase and development of the use of NICT in the labour relationship.
These new technologies, most of all internet, changed the business landscape, turning it in a more competitive way, but, at the same time, created a new type of control, the electronic control of the employer.
The use of these technologies of the Web 2.0, led to the user to have a positive and active attitude interacting with others, abolishing the notions of time and space, changed the labour landscape. The internet and the e-mail, the use of online social networks like Facebook or Twitter, Orkut, Friendster, or Linkedin, the blogs, the fo-rums, turned the control of the employer to a more and more present and intrusive one, affecting the workers» privacy and putting new questions to labour law, not only during the execution of the labor contract, but also previously in the hiring process and in the ending of the same.
On the other hand the notion of oblivion does not exist on the internet. Data, once published, may stay there literally forever - even when the data subject has deleted them from the «original» site, there may be copies with third parties (including ar-chive services and the «cache» function provided by a service provider). Additional-ly, some service providers refuse to speedily comply (or even to comply at all) with user requests to have data, and especially complete profiles, deleted.
However, the workers don’t leave behind their rights as persons (and certainly not their right to privacy and data protection) when they celebrate a labor contract. In fact, they have a founded and legitimate expectation of a certain degree of privacy in the workplace, because there they develop a significant part of their relationships with other human beings and there is a reasonable expectation to privacy and data protection.
Furthermore, the existence of an employment relationship does not take away the re-spect of the right to privacy and human dignity. More in particular, monitoring issues will need to take the employee’s right to privacy and the protection of his/her personal data into account.

Inhaltsverzeichnis

  • 1. Introduction
  • 2. The use of online social networks in the hiring process
  • 3. Conclusion
  • 4. References

1.

Introduction ^

[1]
In 1890 SAMUEL D. WARREN AND LOUIS D. BRANDEIS, with the article The Right to Privacy published at Harvard Law Review, originated the appearance of the first notion of the right to the privacy. Although some previous approaches exist, none had the impact of this one. The authors’ objective was to establish a juridical limit to the interferences of the press in the private life. With this article WARREN and BRANDEIS declared the need of a right to privacy as a central part of the human being personality and that forbids the intrusion and the manipulation of the power of the press related with the new technology that appeared to the date. The authors invoke in the article that the law should protect the privacy, the intimacy of the private life, assuring each individual the right of determining the extension up to where each one wants to see known and published his or her private life, their feelings, their thoughts, or their tastes.
[2]
Nowadays, the authors’ concerns continue to be very up date. The right to privacy is enlarged in the ends of the XIX century and in the XX century, related with the development of new technologies and with the objective of including new realities related with these innovations.
[3]
More than a century passed from this article and numerous economic, political and social conditions changed, as well as technological ones that dictated the appearance of new threats of the right to privacy and that created the need of its reformulation.
[4]
For many, nowadays, the «sacred precincts of private and domestic life» extended to the information highways. More and more users put, volunteer and involuntarily, personal information, pictures and personal data in blogs, online social networks and in other places in Internet and the great challenge that this new behavior brings to privacy is the fact that great part of the information that is put in this social networks is a result of the initiative of the user and based on his consent.
[5]
At the moment, the world in general and the labour law in special, has been suffering in the last years countless changes related with the enormous increase and development of the use of NICT in the work relationship.
[6]
The use of these new own technologies of the Web 2.0 is characterized by the fact that the user has no longer more a passive attitude but, instead, he has a positive one and starts to interact with others using the computer, abolishing the notions of time and space deleting the borders between the users. The internet and the e-mail, the use of online social networks like Facebook or Twitter, Orkut, Friendster, Netlog or Linkedin, the blogs, the forums, turned the control of the employer more and more present and intrusive. This control becomes, many times, potentially vexatious, continuous and total, bringing, inclusively, risks for the workers’ health, so much physical, as psychic, namely for knowing or feeling oneself constantly watched.
[7]
The employers can gather information about the workers through the observation of what the workers did in the workplace and discover their interests and preferences, through the analysis of the sites they visited, making possible the creation of the workers’ profiles and their selection based on these data. They can, still, in the hiring process, see the information that candidates put in their online social networks or in their personal blogs and exclude them based on what they see of the same.
[8]
Through the New Information and Communication Technology there is a clear disappearance of the borders between professional and personal life. The new technologies allow the notion of time to be transcended, with the enormous capacity of storage of the computers and the possibility of always leaving track and of being invisible, originating that the computers can represent a great help for the employers when allowing to gather proofs for litigations with their workers. The computers turned «in the new supervisors» of the workers1.
[9]

On the other hand, it is more and more visible a smaller separation among the borders of the personal and professional life in the measure that the workers can enjoy, through these technologies, some personal time (sometimes very private time) during the working hours. However, simultaneously, they invade the home and the worker’s private life and so «the official working hours don’t mean anything when the work can be taken home to continue to be accomplished there, without any temporary limit»2. As ALAIN SUPIOT3 wrote, the new technologies are «creating new forms of subordination», defending that the worker must be entitled the right to disconnect, as the right to private life of the XXI century. The worker is entitled to be not (at least not permanently) online. He has a right to the disconnection, to effective rest. It is a technical disconnection that, like JEAN-EMMANUEL RAY4 wrote it is favorable for the company because the workers that don’t have a free time turn neither more productive, nor more faithful to the company.

[10]
In reality, like JEAN-EMMANUEL RAY wrote, we are facing «a war of times»5. The official hours don’t have any meaning when the worker is not entitled legally to rest. We can enter, this way, in a type of total nakedness.
[11]
Nowadays, in spite of online social networks appeared initially as a mean of interpersonal communication and entertainment associated to the leisure and the communication with friends, the friends’ friends and, until, unknown people, nowadays they became more and more used by many companies for professional issues. The number of enterprises that have been creating a profile in these online social networks, given the easy accessibility and the rapid dissemination of information has grown exponentially.
[12]
On the other hand, the online social networks make possible to the person responsible for the recruitment and hiring decisions to analyze the curriculum vitae and the candidates’ personal and professional information.

2.

The use of online social networks in the hiring process ^

[13]
The explosion of the digital online social networks made significant changes in the social structure and on the way people interact with each other.
[14]
Online social networks are spaces online where the users have tools and applications that seek not only the entertainment, as well as the information, trade and, above all, the interaction with other users. The means of traditional communication are put aside by these new forms of communication. This dynamism of the online social networks is one of the great factors that turn them so attractive to people.
[15]
In these online social networks each user should update their own data, define their online profile and insert the information that they want and update the same, and insert comments, photos, videos, among other possibilities. Many of these online social networks became, now, platforms for exchange ideas, thoughts, comments, images, to snoop on the friends life’s and the friends’ friends, and these friends can vary among colleagues of school with whom the user has no longer contact in many years, to the work friends, customers or, until, unknown people. On the other hand the notion of oblivion does not exist on the Internet. Data, once published, may stay there literally forever - even when the data subject has deleted them from the «original» site, there may be copies with third parties.
[16]
Regarding to these characteristics we think that the answer for several of the problems that appear cannot be the same. We believe that we have to make an analysis of each situation in concrete.
[17]
The employment relationship is a perfect example of the existence of unequal relationships. In reality, the worker and employer don’t have the same freedom in what concerns he celebration of the contract nor the stipulation of the terms of the same, what creates the emergence of a contractual unbalance that is increased in unemployment eras as, unhappily, it happens nowadays. In relation with the juridical plan, the conclusion of the employment contract puts the worker in a situation of juridical subordination in relation to the employer.
[18]
This unbalance situation has new developments with the increase of the New Information and Communication Technology (NICT) and with the development of online social networks, because today is a very common situation of many companies to googalize the candidates in the hiring process in the measure in that aids very much the person that does this process. Through a research at distance, extremely fast, free, and above all discreet, it is possible to know the intimacy of the candidates because frequently these data, sometimes very private, are in a free access, and many times are the candidates who voluntary or involuntarily give these information and personal data in online social networks, like Facebook, Orkut, Twitter, Linkedin or Myspace.
[19]
This new forms of electronic control allows an easy collection and gathering of the workers’ personal data. Data that one finds disseminated in several sources of information, appears instantly gathered in a database without having been submitted to a previous estimation concerning its relevance to the aptitude requirements or with the derived obligations of the employment contract.
[20]
The problem is related with the fact that together with this logical and necessary use of NICT, the employer can use these information and personal data, for other purposes, neither legitimate nor lawful, disguising them under the form of productive interests when in reality they are forms of true behavior’s control (of the employee) which are forbidden, not only at national but also at international level6.
[21]
Nowadays a lot of companies go through these online social networks as a tool to evaluate the candidates and to try to identify who has the best profile but with all the legal problems and issues related with data protection and the principle of equality and nondiscrimination.
[22]
Several employers see the candidates’ profiles in these online social networks as a form of verify the information about them, information that they don’t get many times through the simple information contained in the Curricula. The Curricula are a brief abstract or presentation of the candidate’s professional life, while other personal information can be seen online. And, unfortunately, many candidates discovered in the worst possible way that what they post online can come later to haunt them.
[23]
The digital information becomes permanent and the employers are the voyeurs of this type of actions. The employers collect much information and make decisions based in this collected information without the candidates be aware. And this retrieve of information is possible because it is cheap and very easy of accomplishing. But this type of behavior cannot be accepted.
[24]
It is important however to take attention in the fact that the information collected in these online social networks can be wrong or not up dated. Candidates can have in their pages personal information that it is false or highly exaggerated in an effort to be accepted in certain groups in a certain time of their lives, as an exploration process and development of their own identity. On the other hand a person can introduce false information about itself to please other people or, worse, other people can make it without the knowledge or the person’s consent, what only comes to reinforce the idea that the people don’t always have the control of the information that exists and it is post about them.
[25]
On the other hand, the information of the candidates’ profiles can be out of the context and originate the exclusion of the same.
[26]
For everything referred previously we can see how the use of online social networks is a common instrument frequently used in the hiring process because it provides a candidates’ complete information that helps, inclusively, to know personal data sometimes very private.
[27]
However, the problem is how to avoid and guarantee that the information that is found in these online social networks won’t influence in the hiring process unless affects in the execution of labour contract and that is strictly related with the need to assess the candidates’ capability.
[28]
And the answer in Portugal is in article 17 of Portuguese Labour Code, with the epigraph Protection of personal data, that establish what is the field of control of the employers and of the futures employers in relation to the workers and to candidates in what concerns to the personal data. The employer cannot require job candidates to provide information regarding their private lives, except when such information is strictly necessary and relevant to assess their capability to perform the labour contract and such grounds are supplied in writing.
[29]
The problem is related with information that the employer obtains in free access sources, mainly when the candidate has several available personal data for the public and not just for certain people and if those data were put by himself because, in those cases, it can be considered that previous consent exists.
[30]
It seems to us that, here, the employer will be made responsible if what he has seen online influenced in a discriminatory way the hiring or the exclusion of the candidate. Imagine that, based in the picture of the candidate and in the age that he looks on it, the candidate is discriminated based on his age. This type of discrimination is forbidden in article 24 of the Portuguese Labour Code but also at an European Union level7, or it discriminates related to the sex or gender of the candidate, that is prohibited also in the same article, or base on his race or ethnic origin, or even in the disability of the same. Or, if he obtains more freely information available online, the candidate is excluded based in his/her religion, or in his/her sexual orientation or marital status.
[31]
However, we think that it is very difficult to the candidate, or even impossible, to prove that he/she was excluded of the hiring process by the research that the future employer made online and, for that, we think that this approach and protection has to go more far away.
[32]
It seems to us that the principles of data protection and most of all the legitimate purpose related with the personal data treatment that data that only is pertinent, necessary and appropriate should be collected for the lawful treatment of personal data This principle is in article 6 no. 1 paragraph b) of the Directive 95/46/EC, and in the article 5, no. 1 paragraph b), of the Portuguese Data Protection Act, meaning that the purposes for which data are collected shall be specified, that these purposes must be explicit, i.e. fully and clearly expressed and that the purposes must be legitimate.
[33]
It also means that workers’ personal data can only be treated if such treatment respects these principles, being essential the explicit definition of these purposes.
[34]
It’s essential that the purpose be defined in the most concrete and accurate way because it is only with this detailed specification that we will be able to prove the proportionality of the personal data that has been treated and to check the legitimacy of all other operations that were undertaken.
[35]
The purpose intended by the employer has to be legitimate, that is, it should be in accordance with the legal and ethical framework, mainly with the fundamental rights, especially since we are dealing with a work relationship. In fact, this principle represents an important limit to the treatment and conservation of personal data under any form, mainly imposing restrictions in the elaboration of automatic profiles based in the personal data treated.
[36]
Having said that we don’t understand how certain personal data of the candidates’ private life, like pictures where a candidate is in bikini or with a vodka bottle in her hand can accomplish these reasons of pertinence and adequacy.

3.

Conclusion ^

[37]
The Internet and wireless communications modified the way the human beings interact. And this is a process without return, being essential some form of protecting of the privacy of this type of communication. If employers continue to make controls of off duty activities or of what the candidates post online or their «Likes», if they continue to censure their online behaviors based on the information that they obtain through these online social networks, it seems to us that a negative effect will exist in the use of these new means of communication and their consequent decrease and persons will modify what they post online and put only what they think that is the expectations of the employers or of the futures employers.

4.

References ^

BELLAVISTA, «I poteri dell’ imprenditore e la privacy del lavoratore», in DL, vol. 76, n.º 3, 2002

BLOUSTEIN, «Privacy as an aspect of human dignity: an answer to Dean Prosser», in New York University Law Review, vol. 39, 1964

BROWN, Victoria and VAUGHN, Daly - «The Writing on the (Facebook) Wall: The Use of Social Networking Sites in Hiring Decisions», in J Bus Psychol, n.º 26, 2011

CLARK, Leigh A. and ROBERTS, Sherry J., «Employer’s Use of Social Networking Sites: A Socially Irresponsible Practice», in Journal of Business Ethics, n.º 95, 2010

DELAWARI, Myriam and LANDAT, Christophe - Les enjeux de la relation salariale au regard du dévéloppement du réseau Internet, in www.ntic.fr

FORD, Michael, «Two conceptions of worker privacy», in ILJ, vol. 31, n.º 2, 2002

GOLISANO, Giampiero, «Posta elettronica e rete internet nel rapporto di lavoro. USA, Unione Europea e Italia», in ADL, n.º 6, 2007

GRABNER-KRÄUTER, Sonja, «Web 2.0 Social Networks: The Role of Trust», Journal of Business Ethics, n.º 90, 2009

HAGEDORN, Falk, Datenschutz am Arbeitsplatz, PAW National Report – Germany, 2012, in www.pawproject.eu

LASPROGATA, Gail; KING, Gail; and PILLAY, Sukanya , «Regulation of Electronic Employee Monitoring: Identifying Fundamental Principles of Employee Privacy through a Comparative Study of Data Privacy Legislation in the European Union, United States and Canada», in Stan. Techn. L. Rev., n.º 4, 2004

MOREIRA, Teresa Coelho , «A discriminação em razão da idade no contexto de uma população envelhecida na UE», in Minerva, Revista de Estudos Laborais, ano VIII – I da 3.ª série, n.ºs 1-2, 2012

MOREIRA, Teresa Coelho, A Privacidade dos Trabalhadores e as Novas Tecnologias de Informação e Comunicação: contributo para um estudo dos limites do poder de controlo electrónico do empregador, Almedina, Coimbra, 2010

MOREIRA, Teresa Coelho, Da esfera privada do trabalhador e o controlo do empregador, Studia Iuridica, Coimbra Editora, 2004

NEWELL, Bryce Clayton , «Rethinking Reasonable Expectations of Privacy in Online Social Networks», in Richmond Journal of Law and Technology, vol. XVII, n.º 4

PIKE, George , «Fired over Facebook», in Information Today, April, 2011

RAY, Jean-Emmanuel, «La guerre des temps: le NET? Never Enough Time», in DS, n.º 1, 2006

RAY, Jean-Emmanuel, «Avant-propos de la sub/ordination à la sub/organisation», in DS, n.º 1, 2002

RAY, Jean-Emmanuel and BOUCHET, Jean-Paul , «Vie professionnelle, vie personnelle et TIC», in DS, n.º 1/2010

SAVATIER, Jean, «La liberté dans le travail», in DS, n.º 1, 1990

SMITH, WIlliam and KIDDER, Deborah , «You’ve been tagged! (Then again, maybe not): Employers and Facebook», in Business Horizons, n.º 53, 2010

SUPIOT, Alain, «Travail, droit et technique», in DS, n.º 1, 2002

SUPIOT, Alain, «Les nouveaux visages de la subordination», in DS, n.º 2, 2000

TENE, Omer and POLONETSKY, Jules , «Privacy in the Age of Big Data: A Time for Big Decisions», in Stand. L. Rev. Online, vol. 64, n.º 63, 2012

VIGNEAU, Christophe, «El control judicial de la utilización del correo electrónico y del acesso a internet en las empresas en Francia», in RL, n.ºs 5-6, 2009

WARREN and BRANDEIS, «The right to privacy», Harvard Law Review, vol. IV, n.º 5, 1890

 

 

Teresa Coelho Moreira, PhD in Labour Law, Professor in University of Minho, Law School, Portugal. Member of Executive Committee of the Human Rights Center for Interdisciplinary Research of University of Minho.

 

 

  1. 1 CHRISTOPHE VIGNEAU, «El control judicial de la utilización del correo electrónico y del acesso a internet en las empresas en Francia», in RL, n.ºs 5-6, 2009.
  2. 2 ALAIN SUPIOT, «Travail, droit et technique», in DS, n.º 1, 2002, p. 21.
  3. 3 «Les nouveaux visages de la subordination», in DS, n.º 2, 2000, p. 132. In the same sense, MYRIAM DELAWARI and CHRISTOPHE LANDAT, Les enjeux de la relation salariale au regard du dévéloppement du réseau Internet, in www.ntic.fr, pp. 43 e ss..
  4. 4 «Avant-propos de la sub/ordination à la sub/organisation», in DS, n.º 1, 2002, p. 7.
  5. 5 «La guerre des temps: le NET? Never Enough Time», in DS, n.º 1, 2006, p. 3.
  6. 6 MICHAEL FORD, «Two conceptions of worker privacy», in ILJ, vol. 31, n.º 2, 2002, p. 237.
  7. 7 About this type of discrimination see TERESA COELHO MOREIRA, «A discriminação em razão da idade no contexto de uma população envelhecida na UE», in Minerva, Revista de Estudos Laborais, ano VIII – I da 3.ª série, n.ºs 1-2, 2012, pp. 63 e ss..