That's ballsy!

Employers' request akin to questions on age or ethnicity
Employers' requesting Facebook password violates privacy: Experts

By Sheila Dabu Nonato, Postmedia News
Thursday, March 22, 2012

Job seeker Rob MacLeod says he was "taken aback" when an interviewer asked for his Facebook login and password so he could screen MacLeod's photos as part of the job interview.

But privacy experts say asking for social media passwords is crossing the line of "reasonable" employment criteria, akin to asking out-of-bounds questions on age or ethnicity.


MacLeod said he questioned why this was necessary.


"He just pretty much became defensive himself saying 'Oh, you know, if you have something to hide . . . we don't have to go forward in this process,' " MacLeod told Postmedia News.


MacLeod, a 28-year-old Oakville, Ontario resident, said he offered to log the interviewer in, but he refused, asking to access MacLeod's account directly.


"I have nothing to hide. (I said) 'You can look at it. I just don't like to disclose passwords,' " he recalled of the law enforcement position he applied for in 2009.


After the interviewer logged into MacLeod's account, MacLeod said the interviewer came back and explained, "We just want to see some of the photos and see what people you are involved in."


Meanwhile, privacy law experts worry about how the line between private and public life is being blurred in social media.


David Fraser, a Halifax-based privacy lawyer who runs the Canadian Privacy Law Blog, called this case "a completely unjustified invasion of privacy."


According to Fraser, Canada has a "patchwork" of employment privacy laws.


On the federal level, there is the Privacy Act, which imposes obligations on federal government agencies to respect individual privacy rights concerning the use and collection of personal information, while the Personal Information Protection and Electronic Documents Act is its private-sector equivalent.


However, there is no specific provision on collecting social media information.


According to Canada's Office of the Privacy Commissioner, each province and territory has privacy legislation on its use of personal information by government agencies.


British Columbia, Alberta and Quebec are the only provinces with laws that are similar to the federal privacy laws.


Toronto-based business lawyer Javad Heydary said requiring social media passwords is not illegal in Ontario.


Fraser explained that provinces with privacy legislation have a "baseline requirement" that all collected information must be "reasonable."


While searching for publicly available information on a job applicant doesn't infringe upon a person's privacy, requiring their password "goes way beyond that," he said.


Fraser said federal privacy law and privacy laws in Alberta and B.C. suggest that even with consent, unreasonable employment requirements may violate privacy rights.


There's a power imbalance between the interviewer and job seeker wherein consent given may be "coerced," even if it was provided, he explained.


"If a person interviewing you asked for your diary or photo album, would that be reasonable? Would they ask for transcripts with your wife, husband or parents?" Fraser said, comparing people's increasing use of Facebook to private conversations.


Donald Richards, a B.C. privacy lawyer who represents employers, said he wouldn't advise his clients to require social media passwords.


Richards represented West Coast Mazda in what's been called the first case of "Facebook firing" in Canada in 2010. Two employees were dismissed for posting homophobic slurs and online threats against bosses who were their Facebook friends.


But in MacLeod's case, Richards said it was "going too far."


"I don't think that's any of the employer's business," he said.


There may be circumstances, he noted, where consulting a publicly available social media profile is "reasonable," referring to a case in Newfoundland where a woman claiming disability benefits was found to be ziplining on her public Facebook page.


In B.C., a provincial NDP candidate had balked at the party's rules for would-be leadership candidates requiring them to give up their social media passwords. In that incident, Nicholas Simons didn't submit his passwords, citing privacy concerns.


Brian Bowman, a Winnipeg-based lawyer specializing in privacy and social media, said this may become a more common problem in the future.


Handing over passwords represents a "slippery slope," he said.


"If it's a Facebook login today, what will they be asking for tomorrow in terms of trying to get a sense of personal habits and interests which may have nothing to do with the job?"


Canada's Office of the Privacy Commissioner declined to comment.


snonato@postmedia.com
Twitter.com/SheilaNonato