Thailand Law Journal 2012 Fall Issue 1 Volume 15

4.3 Thailand
In Thailand, there are many sources of law that related to personal data protection. For example, the Official Information Act 1997 provides the principles and mechanisms to protect people's right to know and stimulate the free-flow of information between people and public administration, and regulate how the personal information is collected and used within state agencies or state enterprises (Privacy International, 2007). There are also specific requirements relating to personal data collection, such as the Financial Institutions Act, the Credit Information Business Operation Act, and the National Health Security Act. These set out additional obligations and provide a comprehensive framework for data protection, but these acts are applicable only within these industries, or to those who use such information. However, the Personal Data Protection Act is still at a very early stage (not yet enacted). The Act takes a general approach that a data controller may not collect use or disclose any personal data without the consent of the data owner, unless authorized by law. Additionally, the Act contains an outright prohibition on the collection of data relating to sexual conduct, criminal history, health, national origin, race, political opinion, religious beliefs, data thatis detrimental, impairs one's reputation, or causes any sense of discrimination. Nevertheless, there is no specific regulation about the online background check conducted by employers, whether this complies with Personal Data Protection Act. But one can assume that as long as the information collected does not lead to discrimination of job applicant, the employers are allowed to do so. The next section will provide the implication for employers how to conduct the online background check in order to minimize the legal risk of privacy right violating.

5. Implications for employers

There are many aspects to online background check in social network in sites, above all the right to privacy, the protection of personal data, and the discrimination aspect. Employers could, in some countries, legally conduct online background check, as these serve as a tool to prevent fraud, and other activities that may be detrimental to the employers or, to reduce the risk of failed hiring. Nevertheless, in some countries the area of background checks is new and unregulated. The court systems, as well as our federal, state and local laws, are lagging far behind technological advances. The search on information of job applicants without consent can be seen as unethical and this could lead to negative consequences, such as damage to the image of the organization or the lawsuit. Therefore, online background cheek has to be done with caution. Here is some guidance for online background check Employers should:

1.Have a legitimate purpose - Employers should identify the purpose for conducting an online background check, and should inform the job applicants in advance.

2.Ask for consent - To avoid the violation of privacy, it is better to ask the job ipplicants for consent. Employers are on the safest legal ground if they ask the applicants, writing, to consent to the background check. Employers should explain how the check will be conducted and how the data will be gathered. Also, they should ensure tnat the process is done confidentially.

3.Make sure that the inquired information is related to the job - The information searched from the online background check should be specific, factual and job related in content. Employers are not allowed to ask about health, disability or information about applicants' private life e.g. family planning, belief, sexual orientation etc., as these are not job related and are likely to lead to a discriminatory manner in hiring decision. Therefore, asking for or inquiring such information is prohibited by law in oral interviews and also online background check.

4.Ensure that the recruiting process is fair and the background check is
applicable equally- Employers have to be consistent with background check. As with othher recruiting tools, employers should not discriminate any applicants; therefore, the background check has to be done equally and similarly with every job candidates. A record on how the recruiting process is conducted may be necessary, as this can increase the transparency of the recruiting process and helps job applicants to trackback, why he or she is denied for an employment.

5.Not to rely on a single reference or information - It is important to keep in mindhat there may be some inaccuracies of certain informationprovided on social networking sites, as some job candidates many have posted information that is false or wildly exaggerated, in an effort to be humorous and outstanding (Epstein, 2008).

6.Respect the privacy right of job applicants - Employers should not attempt to gain access to job applicants' Facebook profile when the privacy setting is used, or when it is not allowed to do so. As employees or job applicants have the right to privacy regarding personal matters, online background check has to be done with respect and should be complied with the law.

Conclusion

Information technology and Internet are widely adopted in business organizations and used in many business functions. Employers are using social networking sites to conduct online background check, which is on one hand, a useful tool for the employers in selecting the right job candidates for their organizations. However, the information provided on social networking sites could lead to a bias to the decision making and discrimination against job applicants. Furthermore, viewing'job candidates' profiles without their consent (even though the profile is set as public) could be seen as an infringement of the right to privacy; it is unethical and could lead to negative consequences. Since the law in some countries may not cover the online background check and its privacy right issues; to avoid any legal risks, online backgrounds checks should be done with the consent of job applicants and have a legitimate purpose (job related). Employers should respect the right to privacy and should not discriminate any job applicants.