Does my future employer have the legal right to consult my social networks ?

© Netflix < p>In the digital age, social networks have become a mine of information on individuals and employers are not mistaken.

According to a survey conducted by the CV writing assistance site Live Career, 80% of recruiters visit candidates' profiles via social networks before to hire them. However, it raises many ethical and legal questions, and may even be illegal in some cases.

What is the legal situation? ;?

In France, the legal framework surrounding this practice is rather complex. A recent decision by the Court of Cassation dated April 2023 ruled: using searches on the online information of a job candidate “is considered unfair in employer/employee relations when […] such data has been used in a way that is unrelated to the purpose for which it was posted online and has been collected without the knowledge of the persons concerned”. In other words, an employer does not have the right to collect information on candidates' personal social networks without informing them in advance.

This practice is regulated by both labor law and the National Commission for Information Technology and Civil Liberties (CNIL) through the General Data Protection Regulation (GDPR).

Offenders are exposed to penalties of up to several million euros in fines and 5 years of imprisonment. Despite these risks, many recruiters continue to scrutinize candidates' networks.

The limits set by the CNIL

© CNIL

The CNIL has set up a “Recruitment Guide” which specifies the cases in which an employer can legally conduct research on a candidate. According to these guidelines, he is authorized to search for information on recruitment sites such as Monster, APEC and Cadremploi, or on professional social networks such as LinkedIn and Viadeo.

On the other hand, the collection of information on personal social networks such as Instagram or Facebook is prohibited, because it is similar to “a morality investigation”.

Key principles: relevance and consent

Yann-Maël Larher, a labor lawyer, emphasizes that the watchwords for recruiters are “relevance and consent“. The relevance of the search to the job held is essential. In addition, the employer must request the candidate's permission before consulting their personal accounts on social networks.

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These principles are governed by articles 1221-6 and 1221-9 of the Labor Code. These texts stipulate that the information collected by a recruiter may only have the purpose of “assessing their ability to occupy the proposed job or their professional skills” and may not “be collected by a device that has not been previously brought to its attention”.

Legal risks for the employer

© Unsplash/Sebastian Pichler

An employer who systematically examines candidates' social networks without their consent is exposed to several legal risks. In addition to the penalties provided for by law, he could be accused of discrimination if he bases his hiring decision on discriminatory criteria obtained via social networks. He would also risk being prosecuted for invasion of privacy and violation of the GDPR, even if the networks are consultable by all.

A law that should protect future employees

Given these legal constraints, employers are supposed to inform candidates that their online profiles may be consulted as part of the recruitment process. The candidate's consent must be obtained before any collection of data from personal social networks.

Employers must ensure that they only seek information directly related to the position to be filled and the professional skills required. However, it is difficult to prove as a candidate whether the law has been respected here.

What to do to avoid problems

On the candidate side, it is important to remain vigilant about the content shared online. Although the law must protect them, remember that social networks are places publicly accessible to everyone, including employers. We can only advise you to avoid posting messages that could harm you with a recruiter, otherwise you may not be selected under any other excuse.

In a world where digital reputation is becoming increasingly important, it is everyone's responsibility to master these important means of communication.

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