Background research using Google & Co.
Searching applicants’ names in search engines to find out more about applicants than the information given in their application documents is only permitted under certain circumstances. You can read more about this in our article “Hey Google, tell me something about an applicant!”.
About background research using social media
Researching applicants on social media is similarly tempting for employers during the application process as it offers another means of finding out more about applicants than the official application documents reveal.
But are background researches using social media permitted under data protection law?
The answer is: “It depends”, given that people use social media platforms such as LinkedIn and Xing for professional purposes and primarily share information in a professional context. In contrast, personally-oriented platforms such as Facebook, Instagram, and TikTok primarily contain personal information. This is precisely the difference in terms of data protection law.
Data protection principles and legitimate interest vs. personal rights
One thing is clear: During application processes, personal information must also be collected and processed in compliance with the GDPR. The principles for the processing of personal data must be complied with and the processing must be lawful pursuant to Art. 6 of the GDPR.
However, this is only possible to a limited extent when performing background research via social media:
- In the case of social media platforms used for professional purposes (LinkedIn, Xing), a potential employer has a legitimate interest (Art. 6(1) (f) GDPR) in collecting and using the professionally relevant personal data on the platform during the recruitment process. Therefore, a background research using a publicly accessible profile on LinkedIn or Xing is permissible according to data protection law. However, as in the case of a Google search, the applicant must be informed about the personal data processed.
- Personally-oriented social media such as Facebook, Instagram & Co are a different case: These platforms are usually used to share personal information. Therefore, the protection of the applicant’s personal rights outweighs the employer’s interest in obtaining as much (private) information about the applicant as possible when carrying out background research. In particular, this applies to information that is not generally accessible to the public. As such, employers cannot claim a legitimate interest. Moreover, the principles of purpose and data minimization set forth in Art. 5 GDPR are also not upheld in such a constellation.
Prohibited researches represent data protection violations
Consequently, employers are advised to refrain from conducting background researches on social media used for personal purposes such as Facebook, Instagram or TikTok. They should also observe the legal requirements regarding professionally-oriented platforms. Data protection violations can result in major claims for damages or severe fines.
In view of this, companies stand to benefit from increasing awareness of the issue among their employees and from prohibiting background researches via social media platforms for primarily personal purposes for application processes. Documenting this internal regulation to properly fulfill the accountability requirements of the GDPR is also advisable.
What can we do for you?
Do you have questions about the legal limits of background research using social media during application processes?
Do not hesitate to contact us!
Summary of the key facts:
- Background research on applicants in professionally-oriented social media such as LinkedIn, etc. is permitted under certain conditions.
- In contrast, data protection law prohibits employers from researching applicants via social media platforms used for personal purposes.
- Companies need to prepare internal guidelines prohibiting applicant searches on Facebook, Instagram, etc. These guidelines need to be documented to maintain accountability!
