Picture yourself sitting across from a prospective boss having just completed a great interview for a new job. You are just about to leave when you are asked one final question – please provide your social networking login details so the company can inspect your accounts before giving you the position. In a market where jobs are limited and there is increased competition for vacancies, what would you do?
This very situation hit the headlines earlier this year when a number of US employers began asking interview candidates for their social media details before making a job offer. Since then, 14 US states so far have looked into enacting legislation to stop employers asking for social media passwords from interview candidates and others.
An Irish Member of the European Parliament, Phil Prendergast, has called for similar laws to be enacted in the European Union (EU) to protect candidates from what she calls “workplace harassment 2.0”. While this request is being considered, Irish job seekers will have to rely on existing laws to protect them from similar intrusions by employers here.
In Ireland, an employer has the right to contact a candidate’s references before offering them a job. It might also put the employee’s name into a search engine to review any public information that is available online. While this is standard practice, what if the employer went one step further and asked for the candidate’s Facebook, Google or Twitter login details to review his or her private information or direct messages?
There is a raft of different employment laws in Ireland and the EU but very little specific employment legislation that protects the rights of a person who is only a candidate or potential employee. Without specific employment law for this area, an interviewee needs to rely on other laws to prevent the unwarranted collection of information by an employer from his or her private social media accounts.
Firstly, interview candidates could refuse to provide their passwords for social media sites on the basis that this would breach the terms of their contract with the relevant social media site. For example, Facebook’s Statement of Rights and Responsibilities says at Section 4(8) that account holders commit not to share their password or let anyone else access their account. If this provision is not upheld, Facebook can suspend the account or even delete the account holder’s profile.
If this does not stop an employer, the relevant privacy or data protection law might. While our privacy laws are scattered throughout various sources including case law and our Constitution, Irish data protection legislation is more precise in offering safeguards in this area.
Employees rights to privacy in Ireland
Under data protection laws, the information requested by a body collecting data on individuals must be relevant and not excessive for the purpose for which it is collected. In the current context, where an employer asks for social media passwords this would undoubtedly be an excessive request for information and breach the data protection rights of the candidate concerned.
The Irish Data Protection Commissioner, the officer appointed to protect an individual’s right to privacy, has yet to offer his opinion on the practice of employers asking for login details. He has previously said that an employer cannot ask for the Public Personal Service Number (PPSN) from an interview candidate at application stage.
He has also published guidelines for employers on the monitoring of employee’s email and internet while at work. This makes it clear that individuals do not lose their right to privacy and data protection in the workplace. Based on this, it seems he will come down hard on any Irish employer who tries to ask for a candidate’s social networking logins.
A candidate’s private social media accounts are their own personal property. Asking for access to it during the interview process is comparable to asking for the keys to your home to have a look through your drawers. Although this is an extreme comparison, expecting this level of access into a person’s private life is a similar interference.
If the practice of employer’s snooping into private social media accounts starts to creep into Ireland or the EU, it is hoped that similar laws will be enacted here with the same speed and force as were passed in Maryland and Illinois.
Lisa Jackson is an ICT solicitor with Leman Solicitors. Follow Lisa on Twitter