There has been tons of discussion, on this blog and more generally, about the great degree to which our private information is now available on the internet to anyone who cares to look (on our blog alone, see e.g. Tim’s thoughts here and here, mine here, and Derek’s here). As a result of this phenomenon, prospective employers now use search engines to learn things about job applicants that cannot be discerned from the usual routine of cover letter, resume, interview, and references. The general American reaction is that this is a new reality of the internet age, which may persuade people to display a little less of themselves online, may expand employers’ tolerance of certain off-hours conduct, and may create demand for services that claim to clean up one’s undesirable information found online. (Probably all three…)
Finland has now adopted another response entirely, one that would be just about unthinkable here in the U.S. The country simply bans employers from googling applicants, reports the BNA Privacy Law Watch (subscription req’d). The new rule, issued by Finland’s Data Protection Ombudsman, represents its official interpretation of the statutory language of the “Act on the Protection of Privacy in Working Life.”
Such a sweeping view of workplace privacy is alien to the U.S. understanding. Here, employers can and do seek a vast array of information about employees or potential employees. They can and do hire private investigators, obtain credit reports, and require medical exams to learn about job applicants (not to mention what happens in the workplace, with widespread monitoring of communications and video surveillance).
On the other hand, our legal system does care a great deal about discrimination. And here we have a rule that would be very odd to most Europeans: employers are forbidden from asking questions of applicants that are related to race or ethnicity, marital status, disability, age, and other protected characteristics. In Europe, by contrast, age, marital status, and sometimes national origin are standard elements of the resume.
I really don’t know if Finland’s ban on googling is a good idea or a practical one. What’s interesting to me is my initial reaction about the utter impossibility of such a rule becoming law in the United States. The sharp distinction just shows how very far outside the global mainstream our privacy law has become, and it really questions, as comparative law often will, our unstated assumptions about the parameters of legal policy.
One other tangential point: The nature of the Finnish case exposed another distinct hazard of employers’ reliance on Google, and this one is a danger to the employer. BNA explains the case involved
an unsuccessful job applicant who previously attended a conference on mental health as a patient’s representative. During a job interview, the man discovered that in addition to his resume and the education exam certificates he had provided, his potential new employer had documents resulting from an Internet search that referred to aspects of his personal life, including his participation in the mental health conference. However, the information at the employer’s disposal did not clarify the applicant’s status at the conference, leading the employer to surmise that the potential employee could have had a mental health disorder.
In other words, the employer jumped to an incorrect conclusion about its search results, and perhaps missed out on hiring a great candidate.