Summary and implications

Germany is considering a law that would ban employers from looking for information about job candidates from social network sites such as Facebook. According to a draft of the bill, employers would be able to use publicly accessible information about applicants drawn from the internet but not from social networking sites that serve “communication purposes”. The aim of the draft act is apparently to stop private information becoming public.

In the UK until now there has been little debate on whether an employer should be allowed to check out a job candidate's profile on Facebook and other social networking sites, and anecdotally it does happen. However, vetting candidates, in the sense of actively going out and investigating a candidate, rather than just verifying information the candidate has provided, is still relatively unusual in the UK (other than where there is an obvious need for it, such as jobs that give employees knowledge that may affect national security).

The European Court of Human Rights has left the door open for individuals to argue that where information about themselves is publicly accessible on a social networking site, they may still have a reasonable expectation of privacy. The question remains, however, how a ban such as the one proposed in Germany could be enforced. If a candidate would rather that a prospective employer did not read comments by his friends about his antics last Saturday night, he should hit the “friends only” button and keep his private life private.

The legal framework

The legal framework in the UK starts with the Human Rights Act 1988, which incorporates most of the articles of the European Convention on Human Rights (ECHR) into UK law. What would be the position under the Act if an employer did wish to look for information in this way?

Article 8, which states that “everyone has a right to respect for his private and family life, his home and his correspondence”, is the right normally cited by employees and prospective employees seeking to challenge investigation or monitoring of their activities by an employer. However, it is not an absolute right as it is limited by Article 8(2) which sets out the derogations which are permissible, including for the protection of the rights and freedom of others. The main issue for the employer is then to balance the conflicting interests in a way which is proportionate. This usually involves three steps: identifying a legitimate objective, ensuring it is sufficiently important to justify limiting the ECHR right, and then ensuring that the method chosen is no more than necessary accomplish the objective.

Case law

The European Court of Human Rights considered Article 8 in the employment context relatively recently, in the cases brought by Lawrence Pay. Mr Pay was a probation officer working predominantly with sex offenders. He was dismissed after his employers discovered that he was involved in activities including the merchandising of products connected with bondage, domination and sado-masochism and that he performed shows in hedonist and fetish clubs. Photographs of him involved in acts of bondage, domination and sado-masochism were available on the internet. The employer took the view that these activities were incompatible with his role and responsibilities as a probation officer and were particularly inappropriate having regard to his work with sex offenders.

Mr Pay complained that his dismissal was unfair in that it entailed an infringement of the Human Rights Act, in particular his right to respect for his private life under Article 8 and to freedom of expression under Article 10. However, the Tribunal held that Article 8 was not engaged, since Mr Pay's activities were in the public domain, being publicised on the internet and in public places. They could not be considered to be part of his private life. The EAT affirmed the tribunal's decision on appeal.

If this were the test, then arguably job candidates who choose to make information about themselves public on Facebook and other networking sites (rather than choosing a greater level of privacy by restricting it to particular individuals, as is possible on Facebook) cannot rely on Article 8. However, that was not the end of the story. The European Court of Human Rights did not make a final decision on the question but did not accept that the fact information about someone's activities may be in the public domain means that the person cannot rely on Article 8. It commented:

“The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.

There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor”.

Conclusion

The Court has therefore left the door open for individuals to argue that where information about themselves is publicly accessible on a social networking site, they may still have a reasonable expectation of privacy. The question remains, however, how a ban such as the one proposed in Germany could be enforced. If a candidate would rather that a prospective employer did not read comments by his friends about his antics last Saturday night, he should hit the “friends only” button and keep his private life private.