Disclaimer: This essay is for academic purposes only, written in order to fulfill the requirements of Technology and the Law subject. This is in no way to be construed as legal advice. It is merely a statement of opinion of the writer.
Note: This assignment was given with
the limitation that our essay conform to a system of thinking assigned in class
depending on our personal views taken from questions asked in class. I was
assigned the view of a Social Democrat, after having agreed that governments
should lead the people to the future, and after having agreed that, if given
the chance to be a public official, I would follow the word of the law tempered
by morality. Hopefully, I have fulfilled this proviso, given my long-standing confusion
about political differences. (I thought I was a Progressive, and even once
fancied myself a Socialist.)
AFAYC: As Far As You're Concerned, or, Why Companies Shouldn't Search Your Underwear Drawer
“I reserve my vices for after business hours.”
– Victor James Colebrooke from Wanted for Murder (1946)
Private
companies have begun to use social networking sites to screen prospective
employees. This practice has become most notable in the US, where some
interviewers have gone so far as to request the applicants’ passwords to their
Facebook account to conduct in-depth investigations as to their character. Some
states in the US have already responded to this practice, such as the state of Maryland
which did not look favorably upon it.
Nearly
a decade after the internet has become such an integral part of our personal
lives, and social networking sites such as Facebook, Friendster, Myspace, etc.
have become extensions of our personal thoughts, we have to ask the question:
is the old model of screening prospective employees sufficient enough?
Should social media and internet tools be
essential in the acceptance of an applicant? Can companies and institutions use
internet search tools and access to social media accounts in determining the
most suitable candidate?
For
several reasons, I do not believe that it should be so. I believe that some
laws, especially as the highest law of the land, give the government the
responsibility to prevent and punish this practice of using social media to
screen applicants.
1987 Constitution
The
1987 Constitution provides several liberties in Art. III, The Bill of Rights.
In Section 3 thereof, it provides, “The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribe by law.”
It
may be said that the messages contained in the comments and personal messages
between persons relayed through social networking sites are communications and
correspondence that are supposed to be private, and the people communicating as
such have a reasonable expectation of some degree of privacy. After all, each
social networking site has a password.
This password represents many things, but to my mind, it represents most of all
privacy and control.
The
password has to be private, in order for a person to retain control over his
account. Otherwise, the common practice right now in the internet is a total
lack of care with one’s passwords. In that case, we would know the passwords of
our neighbors or total strangers, or there would even be no passwords required
at all. We are given the exclusive control of our social network accounts
because our accounts are our representations of ourselves to the world.
Implicit in social networking technology is the idea of privacy and control. To
take the password of an applicant, or simply to use social media to assess an
applicant, is to infringe upon than privacy which the Constitution protects.
And because the Constitution protects it, the government must also protect it.
Any infringement upon the privacy of the person must be prevented by the
government.
The
Constitution also guarantees the freedom of expression. The relevant portion of
the Bill of Rights states: “No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people to peaceably
assemble and petition the government for redress of grievances.” Here, freedom
of expression is explicitly protected. As stated by Isagani A. Cruz in his book
Constitutional Law, “freedom of expression in general… embraces a number of
cognate rights all aimed at insuring the free and effective communication of
ideas from mind to mind.”[1]
However, “purely private matters do not come within the guaranty.”[2]
It
must also be understood that protected expression includes not just written
language, but also pictures, as in the case of memes.
It
must also be considered that the framers of the 1987 Constitution intended to
give more rights to laborers in the interest of social justice, which Section
2, Article XIII explicitly promotes, including commitment to create economic
opportunities. These economic opportunities may be unjustly hampered by the
practice of screening using social media and internet tools.
Section
3, Article XIII states, “The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.” Even in the rules of statutory
construction, the law is construed liberally in favor of the laborer, and
strictly against the employer. We must construe this portion of the Constitution
in favor of the prospective employee, giving them full protection. This protection is available not just to the employee
but also to the prospective employee, since the provision states “equality of
employment opportunities.”
New Civil Code
Just
as well, the lawmakers of the land have enacted laws that respect a person’s
freedom of expression and privacy. This respect of a person’s rights are
manifested in the New Civil Code, some provisions of which give a particular
remedy for their infringement.
“Article 26. Every person shall respect the dignity, personality, privacy, and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention, and other relief: … (2) Meddling with or disturbing the private life or family relations of another; … (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”
This
provision explicitly provides the right to privacy and the remedy for its
violation. According to the Report of the Code Commission, in the drafting of
the New Civil Code, and explaining Article 26 thereof, “The sacredness of human
personality is a concomitant of every plan for human amelioration. The
touchstone of every system of laws, of the culture and civilization of every
country, is how far it dignifies man.”[3]
It is
in my opinion that using social media and internet tools to assess an applicant
disrespects a person’s privacy, and should be the cause of civil action. By
doing so, the company meddles with the private life of the applicant, and may
even use the information gathered to disqualify the applicant for some personal
condition referred to in Art. 26 (4). It is also important to note that prior
to the enumeration of the acts that would produce a cause of action for damages
and other relief, the wording of the law states that some acts similar to the
enumeration could be included. That means that the actionable deeds are not
limited to the enumeration itself. Does the use of social media and internet
tools in the screening of applicants qualify as similar acts? I answer in the
affirmative.
If
privacy, which is given to the user of the social network, is guaranteed by the
laws of the land, then so is the freedom of expression, as provided in Article 32
of the New Civil Code.
“Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: … (2) Freedom of speech; … (11) The privacy of communication and correspondence; xxx In any of the cases referred to in this article, whether or not the defendant’s act or omission constitute a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence…”
The
provision explicitly protects the freedom of speech and the privacy of
communication of correspondence from those who violate the same, even if they
were not a public officer or employee, but a private individual. Therefore,
private companies must respect the speech and communications made by prospective
employees in social networking sites. To do otherwise would be an actionable
violation of their rights.
It
is notable that another of the rights protected by the same article is “freedom
from being compelled to be a witness against one’s self”. While the intention
of the law is clearly to give more power to the rights guaranteed by the Bill
of Rights, it must be conceded that such freedom from compulsion is with
regards to the courts and the criminal justice system, and to extend the
freedom to matters outside of it, such as job interviews, is a bit much.
However, it must be appreciated that a person is given such freedom, even if
only in the criminal justice system. This means that the evils of being
compelled to incriminate one’s self is understood and contemplated by the
lawmakers.
Finally,
Philippine jurisprudence provides that in the violation of Article 32, good
faith is not a defense. Lim vs. Ponce de Leon, 66 SCRA 299, specifically
states, “The very nature of Article 32 is that the wrong may be civil or
criminal. It is not necessary therefore that there should be malice or bad
faith. To make such a requisite would defeat the main purpose of Article 32
which is that effective protection of individual rights.”[4]
That said, even if the hiring company were in good faith in using internet
tools to screen applicants, it would still be answerable to a court of law.
Anti-Violence Against Women and Their
Children Act of 2004
There
is another law that serves as a barrier to the practice of using social media
to screen applicants. However, this law only protects women. Nevertheless, it
is equally important to understand what part of the law bars the practice.
Among
the acts of violence prohibited by the law is psychological violence, which the
law defines as “acts or omissions causing
or likely to cause mental or emotional suffering of the victim, such as,
but not limited to… stalking…” This must be viewed in relation with the law’s
declaration of policy, which states: “that the State values the dignity of
women and children and guarantees fill respect for human rights. The State also
recognizes the need to protect the family and its members particularly women
and children, from violence and threats to their personal safety and security.”
Stalking was further defined in the law as the intentional act of placing a
woman under surveillance directly or indirectly.
Furthermore,
under Section 5 of the same law, one of the acts constituting the crime of
violence against women and their children is “attempting to compel or
compelling the woman… to engage in conduct which the woman… has the right to
desist from…” This section gives the woman applicant the right to file a case
against the interviewer/screener who merely attempted to compel her to open or
reveal her social networking accounts. Still another act prohibited is “causing
mental or emotional anguish, public ridicule, or humiliation to the woman…” The
government, then, has a responsibility to protect the female applicant from
such screening practices by the company.
Universal Declaration of Human Rights and
the International Covenant on Economic, Social, and Cultural Rights
The
Universal Declaration of Human Rights also recognizes the Right to Privacy and
the Freedom of Thought, Conscience and Religion. As regards the right to
privacy, the “individual is guaranteed freedom from arbitrary interference with
his privacy, family, home, or correspondence.”[5]
These rights would be under fire if the corporations were given free reign to
stalk prospective employees.
The International
Covenant on Economic, Social, and Cultural Rights, or the Economic Covenant,
meanwhile, hold the state parties of the Covenant to recognize the right of
everyone to “take part in cultural life [and] to enjoy the benefits of
scientific progress…”[6]
The
Filipino people could hardly participate in cultural life and enjoy the
benefits of scientific progress if their enjoyment of social networking sites
such as Facebook, and their use of internet publishing tools such as Blogger, would
be held against them in the future.
Theories on Human Rights
In
preventing this kind of practice, attention may be given not just on laws which
the government has a responsibility to enforce, but also on morality and legal
philosophy. In this regard, I will pay attention to some theories on human
rights to highlight the importance of privacy and freedom of thought.
The
Natural Law Theory states that “the conduct of men must always conform to the
law of nature.”[7]
Hugo Grotius, the proponent of Modern Natural Law Theory, states that some “natural
characteristics of human beings are the social impulse to live peacefully and
in harmony with others…”[8]
It is in my opinion that the right to privacy stems from the natural characteristic
of human beings to separate themselves from other people. It is the unalterable
nature of human beings to seek privacy, from the early ages when man hunted in
packs but slept in separate huts, to the present when man has a reasonable
expectation of privacy and control in the management of his internet presence.
Indeed, if anything, what the internet offered most is anonymity. Groups such
as Anonymous thrive on this. It is also my opinion that the right to freedom of
speech, thought, and expression stem from the natural, inalienable nature of
human beings to communicate their thoughts.
Looking
from another theory, the Positivist Theory, the right to privacy and freedom of
thought is also paramount. In the Positivist Theory, “all rights and authority
come from the state and what officials have promulgated.”[9]
The State has already expressed protection of the right to privacy and the
freedom of thought through the Bill of Rights and other laws here
aforementioned. What the Positivist Theory offers that the others do not is flexibility
to adapt to the times. As of this moment, technology advances to a lot of
different directions. Technology with respect to social media, however, is trending
towards privacy, as more and more social media networks offer a higher degree
of privacy. Just last week, Twitter released a new terms of user agreement and
new privacy settings. But another trend which the Positivist Theory must also adapt
to is the trend towards social justice. By harmonizing these trends, one could
reasonably expect that the protection of privacy in the era of the internet,
and the full protection of economic rights and the guaranty of social justice, would
be against the use of social media to screen applicants.
Another
theory which primarily deals with economic and social rights is the Marxist
Theory. However, for reasons of following the restrictions on the writing of
the essay as a Social Democrat and not as a Socialist, this theory will not be
discussed here.
The
Theory Based on Equality and Respect discussed by Coquia in his book Human
Rights: An Introductory Course, and the Theory Based on Justice, both support
the basic human rights, including the right to privacy.
Other Considerations
It
seems unfair to me that companies would use social media and internet tools to
stalk their applicants as part of their screening process. For me, the public
life of a person, which involves his employment, and his private life, which
involves personal matters not related to employment, should remain separate and
distinct. Blurring the lines between the two would be unfair for the employee
because he would always be at a disadvantage. I believe that the use of
internet tools is specifically for judging against
the prospective applicant, if for no reason other than that the employer has already chosen to disregard the
professional life of the employee, in a context which requires only the
professional. Disregard of the skills and aptitude of the prospective employee means
that the employer is getting personal, against common decency. As they say in
Filipino, “Trabaho lang, walang
personalan.”
If
employers are willing to infringe upon the privacy of others, they should also
be willing for their privacy to be infringed upon by others. This screening
process is only one-way. In short, it simply isn’t fair.
Why
should employers concern themselves with the personal lives of employees,
prospective or otherwise? Are they willing to pay for the hours in which the
employee is not working, but at home, sleeping? The plain fact is that the
employers pay for the job
professionally handled with expert skill sets - they are not paying for the person to be their friend, lover, our
spouse. Had it been different, it would not be a job application, but a beauty
pageant.
The
Labor Code is against discrimination in the employment of people. Letting the
employers run rampant with this practice is also letting them discriminate the
applicants for superficial reasons not related to work.
The current
state of employment in the Philippines is bad enough as it is. Unemployment is
at a high. Why make it worse just because the employers only want employees who
like Tori Amos, or because they want employees who read Y: The Last Man? People’s
lives depend on their jobs. It would simply be immoral to hire or fire someone
for such arbitrary matters as internet personas. If anything, a person’s presence
in the internet is as much a fiction as a dating service profile: someone,
somewhere, is writing it.
I
can hardly believe this screening process is that much necessary. If it is,
what did the employers do before the internet? I have an answer: the employers
became professional.
Conclusion
The
screening process involving the use of social media and internet tools to pry
into the personal lives of prospective applicants infringes the right of
privacy and the freedom of expression. It is against the Bill of Rights, it is
actionable in the New Civil Code, it is barred by the Anti-Violence Against
Women and Their Children Act, and it violates the Universal Declaration of
Human Rights and the International Covenant on Economic, Social, and Cultural
Rights. These are laws which the government has a responsibility to enforce. The
right to privacy and the freedom of expression are rights which may come either
from the natural characteristics of human beings, or come from the State.
Either way, they must be respected. Finally, it is also unfair and immoral.
The
screening process existed from even before the internet. The only thing I can
say to employers who insist on stalking as a part of the screening process is: Basic
human decency - IGMG!
[1]
Cruz, Isagani A. “Constitutional Law.” 2007 ed. Quezon: Central Book Supply,
Inc., 1985. Page 200.
[2]
Ibid.
[3]
Report of the Code Commission
[4]
Lim vs. Ponce de Leon, 66 SCRA 299.
[5]
Coquia, Jorge R. “Human Rights: An Introductory Course.” Quezon: Central Books
Supply, Inc., 2000. Page 47
[6]
International Covenant on Economic, Social, and Cultural Rights, or the
Economic Covenant. Article 15 (1).
[7]
Coquia, Jorge R. “Human Rights: An Introductory Course.” Quezon: Central Books
Supply, Inc., 2000. Page23.
[8]
Ibid.
[9]
Ibid. Page25.
