The Law Behind Hiring Practices and the Social Networking Web Site Facebook

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Have the back to work blues? Bored in your lecture? Need a pick me up? Many of us are playing on the Internet until we're blue in the Face-Book!

Over the past few years, 20 million people have signed onto the latest social networking site, Facebook. The site offers a place for people to create their own Web page to share things about themselves. Members can post photos, music, interests, and attitudes, with other “friends” across the globe. In addition, members can also swap messages and comment on one anothers’ photos or viewpoints. Some call this Web-networking or Web 2.0, where the users control the content of these Web sites rather than the owner.

And it’s not just geeks who are geeked about this site! Facebook estimates to have as many as 100,000 new users register each day. Nationwide, Facebook tallies daily 250 million hits and ranks ninth in overall traffic on the Internet. Facebook has become an online home address to many, leaving email addresses nearly redundant. The site keeps people in touch as well as gives us a chance to get back in touch with old friends.

However, in addition to such innocent and friendly uses, many claim to be addicted to the site and it’s stalker-friendly qualities. The site allows you to post your current mood, status, attitude and photographs. Additionally, it allows you to keep tabs on all of your “friends’” (or anyone who accepts you as one). And as more people make connections through other friends, the more people can view your profile (even if you don’t know who they are. That is, unless you change your profile settings to increase privacy).

As popularity continues to soar, Facebook will be challenged to face the music for developing safety and legal concerns — and there are more than a few! The problem is that we're in unchartered territory, so standards of invasion of privacy and unlawful use of your information haven't really been defined or refined yet. Not to mention, these sites are changing and adding new programs so quickly that regulations can't be reformed fast enough to keep up! Thus because online social networking is so new and there isn't much legal precedent for sites to follow, they're left speculating about what they must do to remain in compliance. Today I’ll discuss whether a potential employer can legally view your profile and consider it in their decision to hire you. I’ll also touch upon whether Facebook is legally allowed to share your information with third parties — but continue on about that in Part II in a few weeks.

So, one question on many Facebook user’s minds is whether or not employers can use the site to do a checkup on potential hirees (or even current employees). Well, unfortunately the answer isn’t so simple. For HR employees, many who themselves are probably members of Facebook, it seems logical to log on and check out a candidate’s profile to make sure everything matches up before hiring them. After all, you’ll probably see a much more accurate depiction of someone’s persona on their profile rather than during a formal interview — but, is this legal?

Well, it's mentioned in the Facebook ‘Terms of Agreement’ that the site may only be used for “personal and non-commercial use.” Therefore the deciding factor of the courts will be whether or not this use would be considered “commercial.” If it's found to be “commercial,” employers would not be allowed to view candidates’ profiles. However, if courts believed that profile viewing by an employer was a non-commercial use, then they would be free to check it out.

The law though gets very muddy here though because Facebook also states in their Privacy Policy that they are not responsible for circumvention of any privacy or security measures on the site. This leaves the question open of whether or not an employee would be able to log on and view the candidate’s page from their account at home. Therefore, because it is unclear and unless you would send a letter to your future employer stating, "I got wasted last weekend with all my friends and here’s what I looked like! [picture enclosed]” don’t put anything on your page that you wouldn’t want them to see.

And this logic goes double for anything you post that you don’t want anyone else to see or have a license to! Facebook prospers because of what the users post. Many though don’t know that by posting content we are giving Facebook the license to do whatever they want with your content. “By posting User Content to any part of the Site, you automatically grant …that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license…to use, copy, publicly perform etc …” and the list goes on. This means that you’re giving up copyright control of anything you post on the site — pictures, notes, or blogs! So if you’re posting lots of pics, be prepared to smile for the masses!

Now I’m not saying that the site isn’t great — I’m just saying be aware that Facebook may be a little two-faced. So just be careful what you post! While Facebook has shown that they’ve made a good faith effort to abide by the law and ameliorate any issues they encounter they certainly have pushed the boundaries of privacy a bit and retreated only after public outcry took place to put users back at ease.

Next time we’ll get into how Facebook is sharing your personal information with third parties and whether or not this is legal. I’ll also discuss the implications of who will have access to your information if another company buys Facebook (like what happened with MySpace). One thing is for sure though, after all this Facebook chatter I’ve gotta check this out!

Be sure to stay tuned for another chapter of Facebook legal issues in a few weeks and perhaps my Facebook debut on the FNC Group!



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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.