May 25th, 2017 | Sterling

UK Data Protection Laws and Social Media Screening

Can you remember a time when you didn’t have a mobile phone? In reality, mobile devices didn’t become popular until 20 years ago in the UK, back when they were only used for making calls, texts and possibly playing Snake or Tetris! The smartphone was introduced to the world in 2007 by Steve Jobs with the iPhone, allowing users to keep in touch with friends and family via social media applications whilst on the move. With technology changing every day, mobile devices have brought the world closer together than ever before.

According to the We are Social Digital in 2017: Global Review, the global population is over 7.4 Billion people. Of those, over 2.7 Billion people are active social media users. In the UK alone, over 84% of UK Millennials participate in some social media activity every day. Facebook continues to be the most popular social media site for people 20-29 year olds. Social-Media UK ranked the top five most popular social media sites in the UK in 2016 as:

1. Facebook: 32 Million UK Users
2. YouTube: 19 Million UK Users
3. Twitter: 15 Million UK Users
4. Instagram: 14 Million UK Users
5. Google+: 12.6 Million UK Users

Social Media Profiles Can Say A Lot About You

A social media profile can say so much about a person. Take a look at the social media profile example above. What are some characteristics that you can tell just from a brief glance at the social media profile? With just a quick glance you can see the following:

• Gender
• Marital status
• Current employers
• Education
• Race
• Age
• Health (pregnancy books)

All of these characteristics can be easily seen by looking at a social media profile. However, some of these characteristics are protected by privacy and data protection law and cannot be used in recruitment decisions. The first three data protection principles of the Data Protection Act 1998 state that personal information:

• Shall be processed fairly and lawfully,
• Shall be obtained only for one or more specified and lawful purposes, and
• Shall be adequate, relevant and not excessive.

At first glance, these principles would seem to exclude social media checks from the scope of an employer’s background screening program; however, it all depends on the context. An executive hire’s reputation may be paramount to the organisation, particularly where that hire will have a public-facing role. Reputation may, therefore, be integral to the role.

The Data Protection Act also provides stricter standards for the handling of sensitive personal data which relate to a person’s racial or ethnic origin, political opinions, religious beliefs, trade union activities, physical or mental health, sexual life or details of criminal offenses. Social media profiles may contain large amounts of sensitive personal data which typically requires the explicit consent of the individual before processing.

What is Social Media Screening?

Social media screening is the process of capturing any of a candidate’s publicly-posted activity on the internet that is potentially incriminating. Vetting social media profiles can provide unique insight about a candidate and may reveal potentially unlawful, violent, racist, intolerant and sexually explicit behaviours that would not show up during the interview process. There are risks to an organisation in carrying out social media screening. A few of the risks are:

• Recruitment decisions based on protected characteristics that may not be compliant with the Equality Act 2010
• Non-compliance with the UK Data Protection Act, which covers issues such as the obtaining of information about workers, keeping records, access to and disclosure of records.

Hiring managers should not rely exclusively on social media screening when making a hiring decision. It is crucial that only the information that is relevant to the role be taken into consideration. Social media searches must exclude non-user generated content, sensitive personal data and protected characteristics (see sample above).

Benefits of Social Media Screening

Employers can get vital insight about a candidate by looking at their social media profiles, where this is relevant to the role. Social media profiles can reveal red flags ranging from discrepencies with a CV, to revealing confidential business information. Social media screening can help to protect a company brand or reputation and avoid costly bad hires.

Social media screening should include everyone, not just millennials. With the increase in social media use by older generations, companies should not just focus on one age group when they do social media screening. All ages and every industry sector should have social media screening where relevant to the role.

Third-Party Social Media Screening

It is highly recommended to use a third-party screening company for social media searches. A third party social media screening solution will only focus on the relevant information that relates to job performance and workplace safety. Whereas, a recruitment manager could look at a social media profile and unconsciously (or consciously) make a hiring decision based on the profile image or the content of the posts. There is a fine line between being compliant and looking at information about a candidate’s personal life from their social media profiles.

Create a Clear Social Media Screening Policy

Social media screening is becoming more valuable to recruiters, recruitment managers and employers. As social media screening becomes more prevalent in the recruitment process, employers need to develop a clear policy towards the use of social media for recruitment purposes, in consultation with employees or their representatives where this is required under the law. Companies should have a background screening policy in place to help document compliance and the recruitment process. Find out how compliance plays an important role in the many components of background screening in our infographic, Social Media Screening.

Please Note: Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.