Is it legal to spy on a candidate’s profile on the social network Facebook before hiring him?

Expansión newspaper – Madrid Saturday August 28, 2021

The information that a candidate publishes on their open Facebook profile may not be taken into account in the selection process

In 2021, Facebook has 2.7 billion active users. According to data from Data Reportal, the social network created by Mark Zuckerberg, exceeds its most immediate pursuer, YouTube, by more than 500,000 million users, and WhatsApp by 700,000.

FacebookIn addition, it has bought millions of applications for daily use and the access linked to other tools with its management turn the profiles of its users into a perfect X-ray of their leisure interests, political opinions and consumption habits.

Therefore, this information becomes a real gift for recruiters in selection processes, who may be tempted to spy on the profile of this social network to choose the candidate they like the most.

But is this possible?

“The problem is not in access to public information about the candidates available on social networks but in the possible subsequent treatment of said information. What can be done with said information and how to treat it is determined by our legal system and it is important to seek expert advice to avoid incurring responsibilities “, clarifies Pilar Menor, partner responsible for Labor in Spain at DLA Piper.

On the other hand, making decisions that may be discriminatory based on the personal information obtained about the candidates can result in various sanctions. To clear up any doubts, we analyze below these and other questions that arise in practice.

Can you spy on candidates on Facebook?

This is a complex issue that does not have a simple or straightforward answer. The issue of social networks and selection processes is a very topical issue, and it undoubtedly has many legal implications, both from a labor point of view, as well as privacy and data protection.

“The truth is that in most cases the information is there, it is public and therefore accessible to everyone (we are talking about the candidates’ open profiles on social networks) and therefore ignore it or not take it into account within a selection process it may seem almost impossible, “says Paula González de Castejón, partner in the Intellectual Property and Technology area of ​​DLA Piper.

If the candidate has an open profile on Facebook, doesn’t that mean that anyone can access this information, including the HR manager of a company in a selection process?

It is one thing to be able to access the information, and quite another to use that information and make a decision based on it. If the profile on Facebook is open, it seems difficult to prevent someone (including the person in charge of the selection process) from accessing the information published by the candidate.

However, even if you access it, you will never be able to use that information and incorporate it into the candidate’s report to treat it along with the rest of the information and data provided by the candidate. That is, the information that a candidate publishes on their open Facebook profile will not be taken into account in the selection process.

Why? It is public information and surely very valuable to better know the candidate, their skills, ability to interact, and so on.

“From a point of view of privacy and data protection regulations, the company does not have a legitimate basis to process this information,” says González de Castrejón.

When an individual publishes photos of their last vacations on their Facebook profile, it is considered to be an activity that is confined to their private and non-professional sphere. This was recently recalled by the Spanish Data Protection Agency (AEPD) in its Guide on Data Protection in Labor Relations, of May 2021.

“In this document, the AEPD confirms the position that the European Commission has already taken in this regard through Opinion 2/2017 of the Article 29 Working Group after the publication of EU Regulation 2016/679, which approved the General Data Protection Regulation (RGPD) “, adds the lawyer.

What happens if the person in charge of the selection process asks the candidate for friendship? Would it be understood that in that case there is a sufficient legitimizing basis to treat the information published on Facebook in the selection process?

No. From a data protection point of view, the company does not have a legitimate basis to process personal and non-professional information published by the candidate on their social networks.

What happens then with LinkedIn?

Facebook is not the same as LinkedIn, and the reason is very simple. LinkedIn is a social network of professional contacts (that is how it calls itself and promotes itself) and therefore it follows that the information published on it may have relevance in the professional field.

That is, from a privacy and data protection point of view, it is not the same to treat information about the place where the candidate spent his last vacation (it is not considered relevant for professional purposes and therefore there would be no legitimizing basis) than deal with information on articles published by the candidate in relation to technical or professional issues that may be relevant to the sector in which the candidate wants or develops his or her professional career.

For the latter cases, it is considered that there is sufficient legitimizing basis for the company responsible for the selection process to collect this information and incorporate it into the rest of the information it has about the candidate.

However, even if it has a sufficient legitimizing base, the company must adequately inform the candidate of the scope of the treatment, the purposes of the same, the legitimizing base and the rights that assist them in terms of data protection.

From the labor point of view, what consequences can deciding whether or not to hire a candidate based on the information that emerges from their social networks?

The fact of using as a criterion for the hiring or not of an employee the information that he himself spills in social networks, even in professional ones, may result in a possible discriminatory action on the part of the employee in the hiring process.

“This could constitute discrimination for access to employment if the decision not to hire was motivated by having obtained information on social networks about sexual orientation, marital status, religious beliefs, political opinions or union affiliation of the candidate,” clarifies the partner responsible for labor in Spain of DLA Piper.

In addition, in the most serious cases, it may even involve a violation of fundamental rights (including a possible violation of the right to privacy, although this only in those cases in which information is obtained on social networks not open to the public) and the candidate You could even sue the company for damages suffered.

Read the original note here.

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