I recently reported that a staggering 45% of employers use social-media sites, like Facebook and LinkedIn, to research job applicants. I do not oppose this trend, provided there are safeguards in place to prevent unfairness and discrimination in the hiring process.
There are some opponents to the practice, though, who claim that it could give rise to a claim of invasion of privacy brought by the applicant. I disagree.
There cannot be a viable claim of invasion of privacy unless the plaintiff had a reasonable expectation of privacy in the information that allegedly was “invaded.” In the world of the internet, once it’s online, it’s no longer private. This is especially true when the plaintiff himself was responsible for posting the so-called “private” information on the world wide web.
Some scholars have argued that there should be a claim where the individual consented to share the information only to a limited extent and the “invader” exceeded the scope of that consent. This argument has been limited, for the most part, to academics and has not been well received by the courts. A recent decision from a California court of appeal reinforces the traditional notion that, once posted online, information is in the public domain.
In Moreno v. Hanford Sentinel, Inc., the plaintiff-appellant sued for invasion of privacy and intentional infliction of emotional distress when an article she’d posted on her MySpace page was submitted to a newspaper for republication. The appellate court affirmed the trial court’s dismissal of the privacy claim and held that, “once posted on myspace.com, this article was available to anyone with internet access.”
The plaintiff, Cynthia Moreno, posted “An ode to Coalinga” and posted it in her online journal. The article was a rant about her dislike of her hometown, Coalinga, California. Moreno removed the article from her MySpace page after just six days but, one day later, learned that the principal of Coalinga High School had submitted it to the local newspaper. The article was posted in the Letters to the Editor section of the paper and was attributed to Moreno. The community reacted with death threats to Moreno’s family, who later moved and closed their 20-year-old family business.
The court’s decision is an important one. It states that the fact that Moreno removed the article from her online journal after just six days was “of no consequence” to the determination that no privacy violation had occurred. Instead, by posting it on a publicly accessible web page, she opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.
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And for employers who are considering the practice of Online Applicant Screening but who don’t know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.