Social Media, the Law, and You

Article ImageWhile without a doubt the internet has made it easier to search for jobs-from such general job-seeking sites as to more specialized ones such as has also, in some cases, made it more difficult for someone to get hired. According to a survey released in April by CareerBuilder, LLC, nearly 2 in 5 companies use social networking sites to research job candidates. And a March survey from Eurocom Worldwide shows that 1 in 5 technology industry executives admit to rejecting an applicant based on his or her social media profile.

So basically, if you're up for a job, you may want to hold off on posting pictures from that drunken college reunion weekend to your Facebook page. However, while employers using social media to screen candidates is, relatively speaking, nothing new (a 2009 CareerBuilder survey reported that 45% of employers admitted to the practice), there are signs people-and, more specifically, the government-are saying "enough is enough" when it comes to just how much potential employers can use social media to their advantage.

In late September, California Gov. Edmund G. Brown Jr. signed into law two bills prohibiting universities and employers from demanding applicants give up their email or social media account passwords. Attorney Glen Gilmore, author of the book Social Media Law for Business, applauds the move.

The California legislation "makes good sense," Gilmore says. "We would never dream of letting a college or employer rummage through the traditional mail of its employees or applicants, but, somehow, new media made that seem okay in a different medium."

Gilmore adds that "what many employers and universities missed when they demanded social network passwords was that they were also intruding on the privacy of an applicant's or employee's friends who had a reasonable expectation that their private communications would remain confidential. By demanding access to such information, employers and colleges were exposing themselves to claims by those whose messages may have been exposed in the process."
Gilmore predicts even more legal changes when it comes to social media, and privacy may be on the horizon.

"Across the globe we are seeing regulatory agencies recognizing the prominent role social networks and technology play in our daily lives and are beginning to demand more responsibility on the part of businesses that have incredible access to personal data to treat it with far greater care," Gilmore says. "There is a strong sense that industry self-regulation has failed and that some basic measure of governmental protections must be imposed."

Gilmore notes that the Federal Trade Commission recently released a report on privacy that makes it clear that businesses will be held accountable for the privacy promises they make to consumers. Also, he says, the FTC is working toward what he calls "a major update" of the Children's Online Privacy Protection Act to "update it to our new digital age." The act, which took effect in April 2000, applies to the online collection of personal information from children under 13.

And the toughening of privacy laws isn't limited to America. In Europe, Gilmore says, the European Commission is enacting "even more stringent" laws regarding the online tracking of consumer behavior.

Jason Falls, the CEO of the digital marketing agency and education products company Social Media Explorer, says he "can't imagine" laws like the ones passed in California "are even needed."

"In my opinion-and I'm not a lawyer-demanding someone else's password is a clear violation of privacy," Falls says. "If a business or a school has an issue with something posted on someone's social media account or their private communications within those accounts, there are much more rational ways to address it than demand passwords.

"Sadly," Falls adds, "the law is behind on social just as most businesses are and we have to have this type of legislation. Once the world gets more familiar and comfortable with social, we'll look back on these demands and have a good laugh."

Falls says he has maintained "for a couple of years now that social media purists are in for a rude awakening as the court systems get hold of cases that are based in social media activity." He says courts "have already upheld the notion that anonymous posts cannot be protected if they contain slander or libelous statements," and adds that Texas courts have upheld laws against assault and terroristic threats and bullying against people posting such on Facebook and other social networks.

"The legal system is going to continue to consider legalities of social media behavior and our ‘wild west' is going to become legislated," he says. "I'm pretty sure most of the social media enthusiasts out there aren't going to like it because they'll see it as freedom being taken from them. But the law is the law, online and off."

Gilmore agrees the laws are changing-and they're not done yet.

"What we see happening across the board ... is social media law evolving and struggling to keep pace with social networking and the technology that drives it," he says. "You can expect to see more starts and stops within this space as businesses and lawmakers struggle to understand what's really happening in social media."

As for employers heading to Facebook before deciding whether to hire someone, Gilmore estimates that "most employers are using social media to screen candidates and monitor employees," regardless of whether they admit it. But even then, he adds, they have to be careful.

"The use of social media for employee screening ... is a dangerous road for employers without a clear understanding of the law on the subject and a sound set of guidelines that makes the process fair and compliant with the law," he says. "Without these precautions, employers are setting themselves up for claims of discrimination or violations of the Fair Credit Reporting Act [which governs the collection and use of consumer report information] if they have used an outside agency that doesn't understand the FCRA rules."