Online Privacy Rights: making it up as we go?

In the September 2013 Bland v. Roberts decision, the Fourth US Circuit Court of Appeals ruled that “liking” something on Facebook is free speech and as such should be afforded legal protection. This is good news, and while there has been extensive coverage of the decision, there are important implications for employers and employees that have not yet been fully explored.

The question is how far can an employer go in using information gleaned from social media sites against present and future employees?

Bland v. Roberts: about the case

The case was brought by employees at a Virginia Sheriff’s office whose jobs had been terminated.  The former employees claimed that their terminations were retaliation for them “like”-ing the campaign page of the Sheriff’s (defeated) opponent during the election.  Even though the action was a single “click”, the Court determined that it was sufficiently substantive speech to warrant constitutional protection.

Social media checks v. rights of employees

This decision has major implications for the current practice of social media checks of potential and current employees.

More and more that more and more employers are conducting online social media background checks in addition to criminal record and credit bureau checks (where permitted).  A 2007 survey of 250 US employers found that 44% of employers used social media to examine the profiles of job candidates.  Survey data from ExecuNet in 2006 shows a similar pattern, with 77% of executive recruiters using web search engines to research candidates and 35% stating that they had ruled candidates out based on the results of those searches.

Legal and ethical implications of social media checks

Federal and provincial human rights legislation in Canada stipulates that decisions about employment (among other things) must not be made on the basis of discrimination for protected grounds. Employers and potential employers are required to guard against making decisions based on discriminatory grounds.  These have been refined through legislation and expanded by court decisions to include: age, sex, gender presentation, national or ethnic identity, sexual orientation, race, and family status.   

Social media checks can glean information actually shared by a user (accurate or not), but also can fuel inferences (potentially unfair, gendered, classed or sexualized) drawn from online activities. 

For example, review of a given Facebook page may show (depending on the individual privacy settings applied):  statuses, comments from friends and other users, photographs (uploaded by the subject and by others), as well as collected “likes” and group memberships.  These can be used to draw inferences (accurate or not) about political views, sexual orientation, lifestyle and various other factors that could play into decisions about hiring, discipline or a variety of other issues concerning the individual. 

Online space is still private space

The issue of social media profile reviews is becoming an increasingly contentious one. An employer should have no more right to rifle through someone’s private online profile than through one’s purse or wallet. With the Bland v. Roberts ruling and its recognition of Facebook speech as deserving of constitutional protection, important progress has been made in establishing that online privacy is a right and its protection is a responsibility.