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Asia IP Profiles 2020 ranks IP firms across APAC.
14 January 2020
Social media has exploded in the last 10 years.
Not only does this mean there is a growing number of social media users around the world; businesses and professionals are also finding new uses for it.
Aside from posting their personal photos and opinions, they’re also starting to use social media as a marketing tool for their business and the company they work for.
In the last few years, human resources personnel have jumped onto the bandwagon. Now, they’re turning into job applicants’ social media accounts for their recruitment. Not only are they asking applicants to fill in physical and online forms, scheduling them for interviews and tests, they are also looking at the candidates’ social media profiles to fish for information that is not available in resumes or not apparent in the job interview.
Work ethic, attitudes toward the applicant’s present employers and coworkers are just of some of these information.
According to a 2018 Career Builder survey, 70% of the employers who participated said they use social media in their screening process. The figure was merely 12% in 2006, and 25% in 2010.
With this practice now a trend, where does data privacy and protection come in?
“If the HR department only reviews the public information displayed on the job applicants’ social media accounts, which is public for everyone, I do not think it will intrude into the job applicants’ privacy. If the HR department requests the job applicants to show them all the information on their social media accounts, which include information not directly related to the job and the employment contract, the job applicants are not obliged to provide so,” says Dora Luo, a counsel at Hunton Andrews Kurth in Beijing.
According to Tess Lumsdaine, a senior associate at Herbert Smith Freehills in Hong Kong, using data from a job applicant’s social media account may not be consistent with data protection laws. This despite the common belief that data that is public may be used freely, she says.
“For example, in Hong Kong the protections afforded by data protection laws apply to personal data obtained from the public domain without exception. The Personal Data (Privacy) Ordinance, or PDPO, requires a data subject to consent where their personal data is to be collected and used for a purpose which differs from the original purpose for which their personal data is in the public domain,” Lumsdaine explains. “The Privacy Commissioner for Personal Data cautions against using publicly available data for ‘profiling’ which involves combining data from different public sources, the result of which is likely to mean data is used for a purpose beyond the original purpose of the unique components of the data and may result in inaccurate inferences being made against the data subject.”
In Thailand, the use of a job candidate’s personal data for background checking on social media does not violate the Personal Data Protection Act 2019 (PDPA), as long as this only involves publicly accessible data.
According to the Global Digital Report, Thailand is third in the list of top social media users for 2018. The country’s average daily usage rate was three hours and 10 minutes.
“The PDPA requires that the data subject or the applicant in this case must be informed of the purposes of the collection and use of their personal data, such as that the recruiter will conduct background checks including using social media, as well as other information including the storage period for the data,” says Kanyapat Ratanawilas, an associate at Watson Farley & Williams in Bangkok. “As the PDPA was only recently enacted and companies have until May 2020 to comply with it, these issues remain largely untested under the new law.”
Whether such practice is discriminatory or not depends on how the data from social media was used in the screening, says Lumsdaine.
“Generally, organizations take great care that their questions to a candidate in their written applications or interviews are directly related to the requirements of the role and do not collect irrelevant information about protected attributes such as pregnancy, race or political affiliation. Data collected from social media sites will often contain details which reveal a candidate’s protected attributes. Companies must therefore be extremely cautious not to treat an applicant less favourably, directly or indirectly, on the ground of any protected attribute,” she explains.
In Hong Kong, complaints on the use of publicly available data have already been lodged at the Privacy Commissioner.
“A greater risk still relates to how information collected from social media may have been used in making the hiring decision,” explains Lumsdaine. “A court or tribunal may infer that the information collected was in some way relied on in making the hiring decision, as why else would it have been collected? It may be difficult for companies to disprove that the hiring decision didn't take into account a protected attribute gleaned from social media and therefore the decision wasn't discriminatory. To defend any claim, a company would need to demonstrate that hiring decisions are based on objective non-discriminatory criteria.”
According to Ratanawilas, if the job recruiter uses the same process for all the applicants, it is unlikely to be discriminatory.
However, she explains that if the recruiter discloses to an applicant that his or her application had been rejected due to personal data in their social media accounts – origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious beliefs, education, or political views – it may violate the Thai Constitution’s anti-discrimination provisions.
“However, companies and recruiters will typically only advise that an application is unsuccessful and if any grounds are provided, these are usually described broadly as the existence of ‘other more suitable candidates’ or the skills and experience of other candidates,” says Alan Polivnick, a partner at Watson Farley & Williams in Bangkok. “If such limited grounds are provided, it would be difficult for the applicants to successfully pursue a claim against the job recruiters.”
For transparency, Lumsdaine and Polivnick recommend that HR practitioners inform the job applicant that they will check his social media accounts as part of the screening process.
“This should be done as part of the application form and require the applicant’s consent before the application can proceed,” says Polivnick.
Furthermore, Ratanawilas says that recruiters should make sure their social media checks do not involve unauthorized access. These include access to private posts and through the social media account of the applicant’s and recruiter’s common acquaintance.
For Luo, if the information is public, then it would be treated as public information. Therefore the job applicant does not have to be informed.
And what if a job applicant posts on social media a negative experience with the potential employer in the course of his application? Can the potential employer sue the applicant if the former finds out?
“If the job applicant reached confidential agreement restricting disclosing any information related to the job interviews, the job applicant is obliged to comply with such agreement. In violation of the confidential agreement, the employer is entitled to sue the job applicant,” says Luo. “If there is no confidential agreement restricting the job applicant to disclose any information related to the job interviews between the employer and the job applicant, certain conditions must be satisfied to establish a case against the job applicant. For instance, if the employer sues the job applicant for infringement of reputation, the employer must prove the job applicant makes misrepresentation for the job interview, the job applicant has subjective fault and the employer’s reputation suffers from serious damage.”
Says Ratanawilas: “It would be possible to bring a criminal action for defamation if it can be proven that an applicant’s post causes damage to the reputation of the potential employer, or a civil action for wrongful act if the post is untrue and causes damage to the reputation of the potential employer.”
However, she says this could backfire on the recruiting company and present serious repercussions for the applicant as well.
“Proactively pursuing legal actions against job applicants’ posts may in turn result in a more negative image of the company. Applicants should also consider the impact on their ability to find a new role if subsequent potential employers are able to access such posts. Such posts may again be indicators of the work ethic of an applicant and the extent to which they can distinguish between their personal data and the confidential information of their employer and the personal data of clients and colleagues,” she says.
However, the whole idea is not just about background checking via social media, asking permission from job applicants and being non-discriminatory. Other problems loom on the horizon.
“Although uncommon, there are reports of companies using fake social media profiles to surreptitiously view candidate’s social media accounts or requiring candidates to provide passwords,” explains Lumsdaine. “The potential for backlash against such practices is substantial and may impact their ability to attract and retain talent.”
But is this practice necessary to start with? Is a job applicant’s social media account an effective gauge of his qualifications and suitability for the position?
Luo does not think so.
“Legally speaking, based on Employment Contract Law, if the employer requests the job applicants to provide their skills, intelligence, knowledge, work ethic and character directly related to the job and employment contract, the employee is obliged to do so,” she says. “In general, the social media accounts contain much personal life-related information which does not relate to the potential job or employment contract. Job applicants could refuse to provide such information to the employer. Also, the information posted on the social media accounts might not be authentic. Personally, I do not think this is an effective gauge of a job applicant’s skills, intelligence, knowledge, work ethic and character.”
For Polivnick, there are key issues involved: the extent to which the applicant shares information about his current employer and position on social media, the extent of personal social media connections with clients and colleagues and the extent to which he uses his personal social media accounts during working hours.
“These may provide an indication of the work ethic of an employee and the extent to which they can distinguish between their personal data and the confidential information of their employer and the personal data of clients and colleagues. At best, these can provide an indication and the basis for further investigations and discussions with the applicant. For applicants, the issues remain the extent to which they are comfortable with their personal data being publicly available,” he says.
But first, companies should ask why they consider social media screening necessary in the first place, says Lumsdaine.
“What gaps in their formal hiring process are they seeking to fill? Many companies have sophisticated processes which include written applications, interviews, criminal record and bankruptcy checks and verification of a candidate’s qualifications and experience through references and referees. Where the role itself does not require any specific public or social media profile or branding, these processes generally provide more valuable information to an organization about a candidate's suitability for the role,” she explains. “Using these processes is more transparent and allows a candidate to respond to any concerns the company has regarding their suitability for the role as well as preventing companies from profiling candidates based on a selection of information removed from its original context.”
Social media may have enabled people to work smarter, including HR professionals who use it as a recruitment tool. But this comes with responsibilities. And among these responsibilities are knowing their legal rights as employers and those of their job applicants.
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