Employers and Facebook

Without a doubt, social networking sites like Facebook and MySpace have made the toil of life as a law student a little more bearable. While professors prattle on and on about jurisdiction and due process and consideration (hopefully never in the same class!), law students find out where the next law school party is going to be, and click through pictures of other law students getting a little friendly at the last party. All good, right?

Wrong.

Those pictures of a good time had by all may become fodder for employers looking to vet applicants online. And, as Shari Claire Lewis observes, they may be perfectly within their rights to do so:

One issue prospective employers should consider is whether a company viewing an applicant's publicly available Facebook page or other postings is invading the applicant's privacy. Although not yet directly addressed by New York courts, it is likely an individual who posts "private" information on an unrestricted Web platform does not have a reasonable expectation of privacy.

In matters unrelated to Internet use, the New York Court of Appeals has determined that New York does not recognize a common law right of privacy.[FOOTNOTE 7] Moreover, in applying District of Columbia law, which does recognize such a right, the Court of Appeals nevertheless ruled that an individual does not have a right to privacy with respect to information the individual has disclosed to third parties. The case, Nader v. General Motors Corp.,[FOOTNOTE 8] arose in a very different context nearly 40 years ago, but the court's reasoning is relevant to social networking disclosures.

In Nader, the court rejected a claim of invasion of privacy based on allegations that General Motors, through its agents or employees, interviewed many individuals who knew the plaintiff, Ralph Nader, asking questions about him and casting aspersions on his character.

The court acknowledged that these inquiries "may have uncovered information of a personal nature," but concluded that it was "difficult to see how they may be said to have invaded the plaintiff's privacy" because information about Mr. Nader that was already known to others "could hardly be regarded as private to the plaintiff." The court reasoned that because Mr. Nader had previously revealed the information to others, he necessarily had assumed the risk that a friend or acquaintance in whom he had confided might breach the confidence.

Looked at in the context of these earlier decisions, it appears that New York employers who access publicly available information that an individual chooses to place on the Internet for anyone to see probably will not be found to invade that individual's privacy.[FOOTNOTE 9] However, there may be ramification to a company that obtains access to information that the individual has attempted to limit access to, by passwording it or designating it as private.

Consider, for example, a Facebook page designated as private and therefore requiring the poster provide individual permission before her private page may be read. No doubt a potential employer that correctly identifies itself and receives the prospective employee's permission to view the private page does not violate that individual's privacy. But what about the prospective employer that obtains permission covertly, such as through another employee or an alias? Equally, can a prospective employer require permission to access a private Facebook page as a condition of employment? Clearly, the latter circumstances are much more problematic.

Additionally, Facebook itself may have some interest in the sanctity of its resources and protecting the privacy of its users so that use of its service does not come to be seen as a potential liability. Facebook's terms of use state that, except for advertising programs such as Facebook Flyers and Facebook Marketplace, Facebook is available to users for "your personal, non-commercial use only."[FOOTNOTE 10]

A company that relies on Facebook for hiring or firing decisions arguably is using the site for commercial purposes. Whether that can lead to any claims by Facebook (or specific individuals) may be unlikely, and damages, if any, would appear to be highly speculative. Nevertheless, its public relations and marketing may require Facebook to take an aggressive stand.

Depending on the jurisdiction, there may be different answers to the question of whether or not employers may hack into private photos of job applicants. Of course, the smart thing to do is to be careful what pictures to put up. You may think your friends are just sharing something intimate, but in today's Internet, you never know whose eyes are looking.

So, if you're unsure whether or not a picture may not embarrass a friend, at the very least keep it in an album marked for your friends' eyes only. And, if you can, ask your friend if it's alright for you to post up the picture. Further, should a friend ask you to untag them or to delete a picture of them (or at least crop them out), listen and do what you can to abide by that; remember, what goes around, comes around.