Privacy and work

Posted on | August 17, 2009 | 12 Comments

Today’s class was about intimacy and privacy, and it drew on the work of Michael Warner and Michel Foucault to talk about publics, discourse, power and confession. We read Emily Nussbaum’s article, “Kids, the Internet and the end of Privacy” which argues that the generation gap between those who up with the internet and those who didn’t is the greatest generation gap since rock n roll. Kinda great timing to be talking about this the week of the Woodstock anniversary.

I was asking the students what they understood by the term privacy and what they do to protect it… we looked at ads for internet protection software and their use of peodophile stereotypes… we read a range of websites that operate through the confessional mode, from Post Secret to Passive-Aggressive Notes. I even sang a version of a song from my childhood that was part of a series of “stranger danger” campaigns (My Body, which Google tells me was written by Peter Alsop): “My body’s nobody’s body but mine; You run your own body, let me run mine”.

But for me, the most disturbing revelation came in tutorials, when students started talking about how many employers are now asking for print-outs of Facebook profiles from job applicants. It sounded particularly common in entertainment and service industries, even though I detected some were suggesting it was commonplace in corporate interviews as well–that it should be taken for granted if you were looking to work for a significant firm.

What struck me about this was that even though students were incredibly articulate about protecting their reputation from the perceptions of others in their peer group, they seemed less capable of arguing how to respond to these other kinds of privacy invasion coming from the workplace. This brings together a range of concerns I’ve been writing about in recent years, and I’d be keen to hear from those who know more about it to reassure me that this is definitely illegal. And, if you have any tips as to which companies engage in this profiling practice please get in touch, publicly or privately :-)

Category: Research, Web studies, Work
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Comments

12 Responses to “Privacy and work”

  1. Mark Bahnisch
    August 17th, 2009 @ 11:08 pm

    We had a similar discussion in my ‘New Communications Technology’ classes @ Griffith last week, Mel.

    On the question of legality, there are three (related but separable) issues, as I understand it.

    (a) It has long been illegal at common law for an employer to take any cognisance of any behaviour of an employee outside work. That’s the general principle – it can get a bit more complex.

    (b) There are laws regulating employee privacy which relate to stuff employees do using IT, and more generally. But I’m not sure how that might work with the use of social media – perhaps during work time.

    (c) I would imagine that the standard prohibitions on discrimination would protect prospective employees to some degree from scrutiny of their self-representation or self-expression during a recruitment process.

    The big caveat is that I’m not a lawyer. But there are some really interesting questions, there, and I might take the liberty of forwarding the post to a friend who is a lawblogger.

  2. Legal Eagle
    August 18th, 2009 @ 8:50 am

    Employers, of course, can plug an employees’ name into Google and see what they come up with. There are even companies which hunt this stuff down for employers. If the employee (or potential employee) has stuff which is publicly available, then insofar as the information which is available is relevant to the skills and abilities required by the employer, then the employer is entitled to take that information into account. (Of course, an employer might use a Facebook profile to take information into account which is not related to the skills and abilities needed for the job, but the hard thing would be proving that they did.) I would strongly encourage people to make their Facebook profiles private if there is any information they would feel uncomfortable about an employer knowing.

    But otherwise – if the information is private – then employers have NO LEGAL RIGHT whatsoever to demand Facebook profiles! The more I think about it the more outraged I get, and I was pretty outraged to start with.

    Mark, you’re right that general discrimination law protects job applicants to an extent. Under anti-discrimination law, employers have to focus on the applicant’s skills and abilities to determine their merit in meeting the inherent requirements of the job. They are not allowed to discriminate on the basis of matters which are irrelevant to the inherent requirements of the job. They are not allowed to question applicants about issues such as sexuality, religion or disability if it is not directly relevant to the requirements of the job.

    If a person had a private Facebook profile which disclosed information about their sexuality, religion, or a disability, for example, they may not want to disclose this information to the potential employer and they are PERFECTLY WITHIN THEIR RIGHTS TO REFUSE TO DO SO. And if someone did not get a job because they refused to disclose their Facebook profile (for example, because it contained information about a disability) then they would be entitled to say they have been discriminated against.

    I do think employees and potential employees have to be very, very careful about what they put online. I wrote a post a while back on employers and the online persona…it’s amazing what some people will disclose online.

  3. melgregg
    August 18th, 2009 @ 9:22 am

    Thanks both of you – very helpful. I am amazed by the stories in your previous post, Legal Eagle!

    So, let me talk about some specific examples that I heard in class, bearing in mind that my brain was tired after 5 hours of teaching…

    1. If an actor was trying out for a role which involved playing a conservative character, and the casting agents saw that the person was more of a partying type in their public FB profile, would it be discrimination if he/she didn’t get the role for that reason? It seems from what Legal Eagle writes that this *would* be discrimination, but is it the case that only politicised identity categories (gender, race, ability, sex pref) are actually named in law as the basis for discrimination?

    2. If a potential employer asked for a FB profile to see whether or not the person was in a union, had affiliations with activist groups, or had connections with certain people, would that be discrimination?

    3. And finally (this is the one that I think relates to a lot of people right now): If an employer made it compulsory to use FB at work to communicate with clients and colleagues would it be discrimination if the employee refused?

  4. Twitted by AmalieF
    August 18th, 2009 @ 10:09 am

    [...] This post was Twitted by AmalieF [...]

  5. Mark Bahnisch
    August 18th, 2009 @ 10:17 am

    Mel, (2) would absolutely be illegal, as trade union membership or activity is one ground on which one cannot discriminate (though, in practice, I suspect it’s a fave among many employers).

    (3) is interesting educationally as well. We have students doing group projects for assessment, and they are required to use a discussion board thingy as part of it. The problem is that the university software is so clunky and buggy – which is why we no longer use the terrible wiki. Some students asked yesterday if they could use a FB group instead, and the answer has to be no, because it would be an invasion of their privacy if we had to access their FB activity to mark them.

    That kinda shades into the issue of whether employees’ comments about their employer on social media can be the subject of action taken against them.

  6. Legal Eagle
    August 18th, 2009 @ 12:07 pm

    Mel, yes, it’s true that only certain kinds of discrimination are legislated against. This page provides a really good summary.

    I’d say the person in scenario (1) would be in trouble, unless they can argue that somehow it was a political belief? Really if they are an actor it should NOT MATTER at all if their actual personality is that of a partygoer, because the whole point is that they act, surely. My sister did a lot of amateur theatre, and she’s a shy person in reality, but did some extraordinarily out there performances.

    Re (2) – yes, discriminating against someone on the basis they are in a union is illegal in this country. The International Covenant on Civil and Political Rights (ICCPR) is incorporated into Australian law by the Australian Human Rights Commission Act 1986. Article 22(1) of the ICCPR says that:

    Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

    As for (3) – very interesting question. I don’t think the law has gotten around to covering this one yet. I suspect employers are going to start having policies which attempt to force employees to toe the line with applications like Facebook. Personally, on just an ideological basis, I don’t think people should be forced to communicate on Facebook with clients if they don’t want to do so. Or the organisation should have a Facebook page or something.

    It devalues the whole application if people have updates spruiking the benefits of their company or products, eg, “Come and have a look at our products!” I’d stop being friends with a person who had status updates like that.

    I have a friend who regularly updates with things like “had really successful business meeting – came to great resolution of issues” and while I love him dearly, I have considered hiding his updates because that’s not what I want to hear about on Facebook.

  7. Kristian
    August 18th, 2009 @ 1:23 pm

    I used to work in the relevant government body regarding anti-discrimination law, so with some tiny authority I say that (1) would be not considered illegal discrimination (at least, not in NSW). Anti-Discrimination laws are very specific in their scope, there’s no ‘general’ discrimination clause. When a claim is made the first step is to check the claim against these specific cases.

    Thus, you’re legally free to discriminate on lots of issues. For example, this is how a family run shop can employ only family members etc, or why a Catholic school can refuse to hire a gay teacher.

    (3) I’m not sure about. I was once asked to have a “profile” page on a corporate website (photo, bio etc), I refused (I wanted no public association with the company) and checked with Privacy NSW who confirmed that I could not be compelled to participate (on privacy grounds). I’m guessing this may apply equally to Facebook if personal information is made public through this practice.

    On the issue of generations (which is always an annoying fauxcategory) I think there might be something special about the ‘generation’ who grew up as the internet itself grew up. I’m not sure what. Maybe I just hate being lumped in with either emo kids on myspace or my mum.

  8. skepticlawyer » Social networking technology and employers
    August 18th, 2009 @ 5:13 pm

    [...] post has been sparked by a post at home cooked theory which involved the author’s students discussing the demands made of them in job interviews: [...]

  9. Rachel O'Reilly
    August 19th, 2009 @ 5:52 am

    1. anything the agent can do to shorten an audition list they’ll do. This strategy isn’t very…logical. But indeed, casting as a kind of discrimination is sort of part of the job. the pro actor would deal with better casting agents, put up a website detailing professional training and skills and multiple preferred images (showing flexibility to play dif roles), lock off everything else, and hope for discrimination that led to positive outcomes. Having said that, my acting friends are the best users of social websites by far. As in, good to watch/experience, uber creative/dismissive of the protocols, and make use of it for non-irksome personal-professional bleed.

    3. Has anyone actually heard of this being made this compulsory? Just curious.

  10. Mark Bahnisch
    August 20th, 2009 @ 12:45 pm

    Trackback:

    http://larvatusprodeo.net/2009/08/20/facebook-social-media-subjectivity-and-workplace-privacy/

  11. Anthony
    August 20th, 2009 @ 1:57 pm

    “That kinda shades into the issue of whether employees’ comments about their employer on social media can be the subject of action taken against them.”

    All employees are under an implied duty not to act against the business interests of their employer. This usually works to prohibit things like moonlighting for competitors. I suspect it generally wouldn’t fetter the freedom of speech of standard employees outside of work time. However, the more senior an employee, the more it might be expected they take positive steps to promote – or at least protect – the corporate brand, rather than bad mouth it.

    Of course, it’s up to an employer to put whatever express restrictions in a contract they see fit.

  12. Rachel O'Reilly
    September 2nd, 2009 @ 11:11 pm

    I should have thought of this before but Seb Chan, “Head of digital, social, and emerging technologies” at the Powerhouse museum in Sydney, does great work and thinking in this area. On company blogging policies (for cultural institutions at least) see his discussion of Powerhouse and BBC policy here:

    http://www.powerhousemuseum.com/dmsblog/index.php/2008/04/14/updating-your-social-media-and-staff-blog-policies/

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