Thailand Law Journal 2012 Fall Issue 1 Volume 15

In Sanders v. American Broadcasting Co., an ABC journalist obtained employment as a telephone psychic and used her hidden camera to record her conversations with her new co-workers, Sanders. After some part of this conversation was broadcasted on television, Sanders sued the undercover journalist. The journalist argued that Sander had no reasonable expectation of privacy because the co-workers who were in that area could overhear her conversations. But the court disagreed with this argument and stating that a person who reveals information about him or herself to some people may have the right to keep that information private from other unintended persons under the law of tort for the breach of privacy. The mere fact that a person can be seen by someone does not automatically mean that he or she should be legally forced to be seen by everyone (Sanders v. American Brdcst. Co., 978 P.2d 67, 72, California 1999).

But in some cases, the disclosure of information to third parties can violate the right to privacy; for example, in Nader v. General Motors Corp. In this case, Nadar, an author who published his bestseller, Unsafe at Any Speed, was threatened by GM in that it dug into his personal information and his past. Furthermore, the company interviewed Nader's friends and family, asking about his private life, his interest, religious beliefs, sexual orientation etc. under the false pretense that it was the background check for recruiting purposes. The court argued that the information already known to others could hardly be seen as private; therefore, Nader could not expect his right to privacy, even though he has shared this information only with some specific persons (Nader v. Gen Motors Corp., 225 N.E,.2d 765, New York 1970).

From these cases, one can assume that there is no specific regulation which determine whether a plaintiff has a reasonable expectation of privacy. The number of persons to whom a plaintiff has shared the information cannot be used as a key factor to decide whether a plaintiff has an expectation of privacy. Being seen by someone does not mean one should be seen by all, but at the same time, providing the information to someone can-be interpreted as providing to all. It is difficult to know, how a court might judge the Facebook user's privacy claims against an employer who accesses the user's profile without permission (Brandenburg, 2008).

Some researchers have mentioned the right to privacy on social networking sites in their works. For example, Introna and Pouloudi (1999) stated that job applicantsabandon their expectation of privacy to the information when they posted it on social networking sites because social networking is about sharing information to the public. Warren and Brandeis (1980) argued that a person's right to privacy ceases once the individual publishes the information or consents to its release. Similarly, these arguments were recently used by the New York Trail court, who ordered a defendant to grant a plaintiff an access to the former's social networking accounts, including deleted materials. In Romano v. Steelcase, Inc. case, Kathleen Romano brought a personal injury action against the defendant (Steelcase) claiming damages related to her loss of enjoyment of life following her injuries. As part of its defense, Steelcase asked the court for an order granting its access to plaintiff's current and historical Facebook and MySpace pages and related information upon the ground that the court reasoned that a review of the limited posting on Facebook and MySpace could lead to the disclosure of evidence, which the plaintiff tried to hide by using private setting. Additionally,.the denying of the defendant's access to those private pages would infringe New York's liberal discovery policies. The court also considered plaintiff's argument about her right to privacy because she has used the privacy setting. However, it was held by the court that the plaintiff had no reasonable expectation of privacy in the content she posted on Facebook and MySpace, as the defendant's need for the information contained on the plaintiffs private Facebook and MySpace pages overweighed the right to privacy. And because neither Facebook nor MySpace guarantees absolute privacy, the court argued that the plaintiff has no legitimate reason able expectation of privacy. As the result, the defendant was granted the right to explore the plaintiffs social networking sites (Romano v. Steelcase Inc., 907 N.Y.S.2d 650,2010).

Using this argument in the recruiting context, it is likely that employees have no reasonable expectation of privacy in the content posted to a social networking site, as SNSs provide insufficient protection of privacy and when the need in viewing SNSs profiles overweighting the right to privacy. Therefore, employers may commence an investigation on the employees' profiles on Facebook or other social networking sites because they could legally do so.

However, the cases mentioned above are based on the American constitution and law. The US courts have interpreted the existence of the right to privacy stemming from several constitutional amendments (Decew, 1997). But other countries may have different rules about what information is deemed private and public, and how the privacy in the workplace is regulated. The following section will provide an overview on some of the major differences in different contries in their regulations on workplace privacy.

4. Workplace privacy orientation and laws

4.1 Germany
In Germany, there is a mixture of laws that provide some workplace privacy and comply with the directive from European Commission (Directive 95/46/EC). Employers have the right to collect some personal data about employees but
monitoring or surveillance of the employee without giving them a notice can only happen under specific circumstance. But generally the collection of personal data must be authorized by law or when a person consents (Reinhard, 2002). The Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) provides a framework regarding online background check. Employers can search for applicant's data online, if the data are used for employment-related purposes e.g. for hiring decisions or terminating the employment contract (Section 32 BDSG). However, collecting data from social networking sites could be seen as a violation of individual's right to privacy, when the privacy setting is implemented. Furthermore, background check in SNSs has to be complied with Anti-Discrimination Law (Allgemeine Gleichbehand-lungsgesetz, AGG), which aims to provide an equal treatment for every job candidates. Employers are not allowed to search for intimate information of the job applicants because such information is not allowed to be asked in the interview. And the job decision has to be made without discrimination of age, sexual orientation, religious belief, ethic age.

4.2 France
In France, there are three principles that guide workplace privacy,namely the principle of transparency that prior notice be provided to an employee before workplace surveillance or personal data is being process; the principle of
proportionality which requires that the methods used to gather the information must be balanced to the depth or type of information needed; and the principle of relevance requires the employer to justify the need for the information. Information sought from job applicants and employees must aim exclusively at evaluating their professional abilities and relevant to the job (Vigneau, 2002).