1 November 2017

Refresh Your Feed: Updated Guidance On Social Media Background Checks

Norton Rose Fulbright Canada LLP


Norton Rose Fulbright Canada LLP logo
Norton Rose Fulbright is a global law firm providing the world’s preeminent corporations and financial institutions with a full business law service. The firm has more than 4,000 lawyers and other legal staff based in Europe, the United States, Canada, Latin America, Asia, Australia, Africa and the Middle East.
Social media is ubiquitous. Over 20 million Canadians have a social medial account.
Canada Employment and HR
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Social media is ubiquitous. Over 20 million Canadians have a social medial account. It is a major source of information about our friends and the world around us. It is also an important vehicle for recruiting and background information.

Employers will often have good reason to formally check an applicant's social media profile in the hiring process. Many will also do so informally. Recognizing these realities, the BC Information and Privacy Commissioner has provided some updated guidance. The guidance is good advice as well for employers operating in provinces that do not have private sector privacy legislation as various common law principles and human rights law may implicate similar issues.

The BC Privacy Commissioner recognizes social media background checks for what they are: a way to screen and monitor current and prospective employees, volunteers, and candidates. Given that employers are going to use this tool, they should consider:

  • Whether they have consent to collect information from social media, or if appropriate notice has been provided. While the information may be posted publicly by an employee, the organization should not assume consent to use it for hiring purposes. Employers may be able to use social media content about that individual's employment consent if it is for reasonable purposes relating to recruiting, establishing, managing, or terminating the employment relationship.
  • Consider the risks of inadvertent collection of third-party personal information and over collection of information. Organizations should not collect more information than is reasonably necessary. Often social media accounts include information about family, friends and others. Additional collection is a potential liability. Irrelevant information can potentially pollute the hiring process. Information about a protected ground under human rights laws may increase the risk of an allegation of discrimination. One way to mitigate against this is to use a recruiter screened from the hiring process to filter out irrelevant information or information about third parties.
  • Information may be inaccurate. Don't guess about accounts and profiles. Other factors can compromise the accuracy of social media, including mislabelled photographs and out-of-date information.

Employers engaging in social media background checks should have a documented process which demonstrates that these issues have been considered and addressed. The process should contemplate the purposes for collection and use, the means and nature of consent involved, ways to mitigate potential intrusiveness or over-collection such as screens, limits on the types of information to be collected and used, appropriate security over the information and retention of the information. Personal information used in the process should be retained for at least one year, however there may be other good legal reasons to retain it longer, such as limitation periods.

While legal proceedings arising from social media checks are not common, failing to follow the guidance raises the risks of a complaint to the Privacy Commissioner, human rights complaint or civil suit.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

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