Australia: Following candidates or employees on social networking sites: A minefield


Social networking is not a fad, but a fundamental shift in the way we communicate. Thus it is no surprise that employers are increasingly using social networking sites to vet potential employees and to monitor the behaviour of current employees. However, this development raises significant privacy concerns and can expose both current and potential employers to claims of discrimination.


In the United States there is a current practice of employers asking for direct access to prospective employees' social media accounts, including user names and passwords. In 2011, a social media monitoring service survey revealed that 91% of the surveyed recruiters in the United States used social network sites to evaluate job applicants; 69% of these revealed that they had denied employment to candidates due to something they found on an applicant's social networking site.

There have also been instances where employers have required candidates to provide their passwords for social networking sites during the recruitment process. Some regulators have, or are considering, similar requirements. For example, the Board of the Florida Bar is considering whether to require lawyer applicants to list personal web sites and grant access to the Board to those sites. Clearly, social networking is considered of great value in determining the appropriateness of candidates.

It is important to remember that communications that occur offline, have limited reach. More thought may also go into the content or tone of an offline written communication. Personal communications offline generally are and remain private communications. Social networks break down boundaries, make it easy for intended private communications to become public, and have a seemingly limitless reach. Many forget that whilst social media may be a means of personal (and public) communication, it is not a "private" domain – the default position is that everything is public. Individuals (and businesses for that matter) need to remember that everything they post is "public" and may be available not only to their friends and peers, but employers, clients and potential clients.

The already fine line between what is considered 'personal space', 'private space' and 'public space' is expected to become even finer with new social media offerings. For example, Facebook is about to launch a new job posting service heralded as a potential rival to other online job services such as LinkedIn. Whilst it is unclear as yet how this new job service will operate, if a candidate lodges a job application through the Facebook service (particularly if the application is linked to the candidate's Facebook account), this may be considered as implied consent for the employer to vet that candidate on the basis of the information contained in their Facebook account.


Employers must be careful when using social media to obtain information about staff or candidates, even if there is express or implied consent to access that information from the individual concerned, as it can lead to significant legal implications.

Facebook has responded to the practice of requesting usernames and passwords by making solicitation or sharing of a user's password a breach of its terms of service. Any coercion by an employer (who is also a Facebook user) of a candidate to provide Facebook details is a breach of those terms by the employer.

Where information is only available to "friends", and access is not provided by the candidate, it may be unlawful and an ethical breach to ask a third party to send a friend request to a candidate or employee in order for the employer to discover information on that person's profile page. This is particularly the case in professions that have specific codes of ethics and conduct (such as those governing lawyers, accountants or other professions). Further, it may also equate to misleading or deceptive conduct in breach of Australian law. Similarly, shoulder-surfing (the practice of requesting candidates to log-in whilst the employer looks over that person's shoulder), may also breach ethical guidelines.

Requests for access to social media sites also raises the extent of any consent given to access that information. Is the candidate authorising access only during the recruitment process, or can an employer continue to access the account subsequently (for example, during the employment relationship)? Even if consent extends beyond the recruitment process (which, in the absence of an express term, we doubt), that consent does not authorise the use of any information for unlawful discriminatory purposes. Further, the information that may be gathered is unlikely to fall within the employee record exception in the Privacy Act and so must be dealt with by the employer as "personal information".

Purely as a method of recruitment, the practice is risky because employers may find out information that is not relevant to the hiring decision. Even if the information is not used as part of the process, an unsuccessful candidate could challenge the employer that the information obtained was used adversely, for example not to hire that candidate. The fact that the information, which otherwise would not be available and would never be solicited in an interview, came into the possession of the potential employer will arguably allow an unsuccessful candidate to allege that it was weighed in the decision making process and used to discriminate against the candidate unlawfully. The employer is then obliged to demonstrate that the information gathered was not a factor in the decision. Difficulties for the employer arise when the information is in the possession of the employer and the implication of the search for that type of irrelevant, personal information is that it was to be used in the hiring decision.

Recently, some jurisdictions have introduced new laws that restrict on the practice. California has passed a bill that prevents employers from demanding job applicants' passwords for social networking sites. Similar legislation has been introduced in the U.S. Congress and is being considered in six other U.S. states.

There is no legislation dealing with this in Australia and, as far as we can tell, it is not being considered. Whilst the NSW Workplace Surveillance legislation requires an employer to only undertake surveillance of an employee "at work" with the employee's knowledge and consent and in accordance with the organisation's policy, which is disclosed to the employee, the legislation does not regulate any surveillance of employees electronically (through monitoring social network content) of activity outside of work.

However, best practice dictates that, if social media is used for purposes of tracking employee activity (including, for example, validating activity when on sick leave), the practice is dealt with in the organisation's workplace surveillance and electronic communications policy and is with employee knowledge and consent. Any terms, including limitations, of the consent given by the individual must be set out clearly in writing.

As the technology and corresponding business practices in this space continue to develop, so too will the law. Given the global nature of social networking, the law in Australia is not the only legislation that employers will need to consider. It is clear that, to minimise liability, employers must ensure that they are fully aware of all the potential risks in engaging in any candidate vetting or employee surveillance activities using social media.

For further information please contact:

Matthew Hall, Partner
Phone: + 61 2 9233 5544

Kelly Marshall, Solicitor
Phone: + 61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions