Employers CANNOT ask you for your Facebook password… in Canada

There’s been some trouble brewing lately in the wonderful world of social media. It seems some employers feel it is in their right to demand that their employees (or potential employees) surrender their Facebook passwords.

Derecho (Photo credit: Wikipedia)

Employees socializing on Facebook and other social media during office hours has been a legitimate concern since social media caught on. Lately, there’s been a growing trend where employers (and colleges for that matter) checking out public social media profiles when considering candidates. But the “need” to have full access to a personal social media account is a whole different ballgame.

Corinne Muccilli (known as @Friendlylawyer on Twitter) says  “Any employer who engages in this type of behaviour  is putting a prospective employee in an awkward position, to put it mildly.  Courts in Canada have recognized that there is, generally speaking, an imbalance of power between employers and employees and that the scales tip in favour of the employer.  Asking a prospective employee for this type of information preys on the vulnerability of an individual who’s either really keen, or really needs, that job.  It can be really difficult for a prospective employee to remember that the interview is as much about the candidate deciding whether he or she wants to work for the employer as it is about the employer deciding whether it wants to hire the candidate.”

I wouldn’t share my email password, I wouldn’t share my ATM pin number, heck I wouldn’t even share my gym locker combination with an employer (and yes, I’m self-employed). Why on Earth would sharing my social media passwords be any different?

According to Muccilli, “Canada has a history of protecting individual privacy.  There are various torts which have been used to defend one’s privacy and, more contemporarily, there are statutes at every level of government which specifically address how organizations collect, use and disseminate personal information.  If something as basic as a person’s name qualifies as information which needs to be protected, an individual’s Facebook password would easily fall in the category of “personal information.”  A case decided in Ontario described the family computer as, effectively, a filing cabinet.  Asking for a Facebook password would be akin to asking for the key to that filing cabinet, or at least a drawer in the cabinet.  It is interesting that that this issue emerged in  the US  just a couple of months after the Ontario Court of Appeal recognized the tort of the intrusion of seclusion which is, effectively, invasion of privacy. ”

As it turns out, at least here in Canada, it is completely illegal for an employer to make this request. Our neighbours in the United States aren’t quite so lucky: read the whole story here in the Globe and Mail.

According to Muccilli, “Employment law in Canada is quite different from that in the United States.  There are a lot more limits put on employers here in Canada, such as what they can ask in an interview, and how they can terminate an employee.  A Canadian employer would more likely to think twice about asking for a password than their American counterpart because of the rules we have placed on the employment relationship.  The really interesting thing is that most of the rules about how we, as a society, interact have already been established and social media nothing more than a different platform from which we interact.   The trick will be how to apply our existing rules on this new platform, which is where our courts step in to offer direction.  It will be interesting to watch the caselaw develop.”

Corinne Muccilli is a litigation lawyer with Baker & Company in Toronto and has a special interest in employment law.  Find out more about Corinne and the firm at www.bakerlawyers.com or contact Corinne directly at (Email) [email protected] (Ph)416-777-0010 and twitter @Friendlylawyer.