Facebook - Face the Facts

January 1st, 2022

A few years ago TRENDZ covered the new Trade Me craze and its effect on the workplace. Today the new craze is social networking which comes in the form of a plethora of sites, such as Facebook, MySpace, and Bebo. While social networking sites can be a great way to keep in touch with friends, increasing numbers of employers and recruitment agencies the world over are using them as a resource in the recruitment process. 

Until I joined Facebook recently I had been receiving a steady stream of light-hearted harassment from friends, particularly ones who were overseas, about why I was "the only person under 30 who wasn’t on Facebook". Tired of being the odd one out, and sick of not being able to look at the photos my friends were posting on their Facebook pages, I ignored the warning screams from the lawyer in me and decided to take the plunge into the internet abyss – I joined Facebook. 

While I should have known better, I suspect I was like most of the 55 million plus Facebook users, and didn’t thoroughly research the way the site worked, or think carefully about the immediate and future effects that publishing information about me could have on my life. An assurance from my sister (who kindly did the grunt work of registering me on Facebook) that my page could only be viewed by people I gave permission to, was all I needed to persuade me to throw caution to the wind and sign up. 

To jump straight to the end of my story, I am still a Facebook member, and I really enjoy using the site, however, after researching the positive and negative aspects of being a Facebooker with my Employment Lawyer hat on, I would recommend that anyone with a Facebook page use it with great caution. 

The reason for this is that once you post something on Facebook, that information has left your control forever – that is, you can never truly delete it from cyberspace. This is particularly concerning for job seekers as it is becoming increasingly common for employers and recruitment companies to screen prospective employees by checking out their Facebook sites. In Britain this figure is thought to be as high as 10% of employers. From an employer’s perspective Facebook can be used as a quick and informative (if possibly unreliable) way of assessing a person’s character. 

Lets face it, if your interests include watching X rated movies, getting wasted every weekend and taking illegal drugs, the Kindergarten at which you applied for a job is likely to burn your application upon reading this on Facebook. Facebookers with public pages (that is, a page that is open to public view) should therefore consider how they would feel if a potential (or even current) employer looked at their page and, if necessary, make appropriate adjustments to it. 

Public page owners should also consider the risk that their image can be compromised by a friend posting an undesirable message on it (which they don’t need the page owner’s permission to do). While the page owner can remove messages from his or her page, there is no guarantee it hasn’t been accessed and stored beforehand. 

While a user can elect to have a private page (which means only their approved "friends" can access the page), this is by no means a reliable safeguard to keep information from employers or recruitment companies. For example, if you post a message on a friend’s public page it can be read by anyone. Similarly, while you would never dream of posting a photo of you vomiting after a hard night on the turps, there’s nothing to stop someone else from doing so on their page. 

Legal considerations

The legality regarding the use of Facebook by employers and recruitment agencies as part of the recruitment process, and its use by employers to keep tabs on current employees, is largely untested. An employer incorporating Facebook checks as part of their recruitment policy should not do so without seeking legal advice, to avoid breaching its statutory obligations (particularly those under the Privacy Act 1993 the Human Rights Act 1993). An employer thinking of using Facebook to keep tabs on current employees should also consider the potential liability they open themselves up to under the Employment Relations Act 2000 by doing so. Consideration should also be given to the ethical side of such an approach to recruitment or employee monitoring.

Privacy Act 1993

Under this Act personal information should not be collected by an agency (which includes an employer and a recruitment agency) unless it is colleted for a lawful purpose connected with a function or activity of the agency, and the collection of the information is necessary for that purpose. Potential employers and recruitment agencies could strongly argue that one of their lawful functions is recruiting employees, and that the information on Facebook is informative of an individual’s character, and thus their suitability to the job. 

Under the Privacy Act an agency is entitled to collect personal information about an individual from a source other than that individual, if such information is publicly available, or if the individual concerned authorises collection of the information from someone else. Collection of information must not be "unfair" or "intrude to an unreasonable extent upon the personal affairs of the individual concerned". 

It is strongly arguable that an agency (such as an employer or recruitment agency) would not be in breach of the Privacy Act if it collected information about an individual from their public Facebook page, or from information they had posted on someone else’s public page. 

Arguably, because the individual elected to post the information publicly for the world to see, it would not be unfair or unreasonably intrusive for an employer to collect such information. 

The situation is less straight forward in relation to individuals with private Facebook pages, as an employer or recruitment agency would be unable to view the page without the individual’s consent. The question then becomes, is it appropriate and/or legal for employers and/or recruitment companies to ask private Facebookers for permission to view their page as part of the recruitment process? 

The Privacy Act provides greater protection for individuals who have private pages. Because the information on private pages is not publicly available, an agency must collect information directly from the individual, unless one of the legislative exceptions applies. While the Privacy Act states that an agency may collect information from someone else if the individual concerned authorises that collection, it is nevertheless arguable that it would be a breach of the Privacy Act for an employer to collect information from a consenting employee’s Facebook page. 

Arguably such an act would be in breach of the requirement that personal information should not be collected by an agency by means that, in the circumstances of the case, "are unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned". Employers (current or potential) and recruitment agencies may argue that collecting information from Facebook is not unfair or unreasonably intrusive because the individual concerned consented to its collection. This is by no means a concrete argument. Despite the fact consent was obtained, its collection is arguably unfair for a number of ethical, moral and legal grounds. 

A request by an employer (current or potential) or a recruitment agency to view an individual’s private page could be seen as an abuse of the power imbalance that usually exists in that relationship. Such a request is likely to place potential employees in a "damned if you do, damned if you don’t" situation in which the individual may feel pressured to consent to their page being viewed if they want the job. 

The request may be viewed as an attempt to be unreasonably intrusive into an individual’s personal affairs, as the information posted on Facebook is generally of a highly personal nature. Furthermore, a request made by an employer to a current employee is arguably a breach of the employer’s duty to promote a relationship of trust and confidence – a ground on which that employee may bring a personal grievance. 

Regardless of whether information is collected from an individual’s private or public Facebook page, the collecting agency should be mindful of its obligation under the Privacy Act to ensure that the information collected is "accurate, up to date, complete, relevant, and not misleading" before using it. I am currently a member of the "I Secretly Want To Punch Slow Walking People In The Back Of The Head" network on Facebook. Under the Privacy Act a potential employer would need to check with me whether I actually do want to punch slow walking people in the back of the head before using that information to decide whether I should get the job, particularly as Facebook is not credited as a reliable source of information. This process of checking would enable me to exercise my right under the Privacy Act to correct this information, that is, while slow walking people irritate me, I don’t actually want to harm them. 

Human Rights Act 1993

The Human Rights Act makes it unlawful to refuse to employ someone on a variety of grounds (unless one of the exceptions applies), such as age, colour, sex, religious or ethical beliefs, or political opinion. Let’s face it though, if a potential employer views an individual’s Facebook page and doesn’t like what they see, it may, even on a subconscious level, make another candidate’s application seem more attractive. For this reason, job seekers may want to prevent potential employers from accessing their pages.

Who should be concerned?

Employers must also exercise caution when using Facebook for personal use. Even posting a simple comment on one’s personal page like "I’m working late because stupid Lola screwed up at work AGAIN and had to leave work early to see the gynaecologist " could provide Lola with grounds to bring a personal grievance, on the basis that she no longer has trust or confidence in her employer. 

It’s not just jobseeking Facebookers who should be worried about how Facebook might effect their employment; Big Boss’s (Big Brother’s sibling) all-seeing eye potentially poses a threat to anyone in employment. A (now former) employee of The Warehouse recently found that out the hard way after comments she made on Bebo (a site similar to Facebook) landed her in hot water with her employer. The woman was dismissed for serious misconduct after her boss read comments that she had posted on her Bebo page, namely "work sux" and that having to work until midnight was "gay like the management". 

This unfortunate experience should serve as a cautionary tale to employees everywhere, all of whom have an obligation not to do anything that could harm their employer. Venting your frustrations about your boss online may be therapeutic, but if you operate a public page, or if you’ve got colleagues listed as your "friends", you may just be committing career suicide by doing so. 

For those who are worried about what employers or potential employers may find out about them online, there are a number of "digital housekeeping" companies that you can engage to undertake internet searches to find (and to facilitate the removal of) any inappropriate or damaging information that may be posted about you. While this may be money well spent for the moment, information in cyber space is never truly deleted. Imagine how you would feel if you were in the running to be the next Prime Minister of New Zealand or the CEO of a multi-national company and it was uncovered that when you were a troubled teen you had been a member of the "let’s make heroin available in schools" network on Facebook. Imagine if those photos taken at a Halloween party of you dressed up as Hitler re-surfaced?! 

Where to from here?

Individuals

While we can’t control what information about us is shared about us on Facebook by others, just having a page provides a platform for people to disclose information about us, and encourages us to share information about ourselves. I only joined because I wanted to look at friend’s photos, but quickly became ashamed of my boring page so added photos, information about my schooling, my marital status, likes and dislikes – the list goes on. Facebook makes adding information very easy. 

If you’re a Facebooker and are beginning to question whether you want to continue to be, you’re not alone. Some Facebookers have committed "Facebook suicide" – that is, they have permanently closed their Facebook pages down. If you need support to do this, you can find it at "The Facebook Mass Suicide Club" website. I enjoy using Facebook and will continue to use it for the time being. I just can’t shake the feeling that by joining I’ve opened a Pandora’s box and may come to regret it. The moral of my story is that while social networking sites like Facebook can be great for your social life, Facebookers need to take extreme caution that the site doesn’t prove fatal for professional life. 

Employers

While employers and recruitment agencies may feel that they could get valuable information about an employee’s character from that person’s Facebook page, collecting information in this way can be legally and ethically questionable. Employers and recruitment agencies considering collecting or using information from an individual’s Facebook page should first seek legal advice and proceed with utmost caution.

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

First Published by Ruth Braakhuis in 2008

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