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CCCA_V7No1_Privacy-FIN_CCCA 2/12/13 5:05 PM Page 38 He who wins Feature last, wins. that they’re encrypted, that they can be remotely wiped, that all those basic safeguards are in place. And I think that if you don’t control that closely, it’s the Wild West.” Another hot privacy area concerns the use of social media Whether you won at trial and face an background checks on prospective hires; there’s been an explo- appeal or lost at trial and wish to launch sive growth in these practices says Currie. The Ontario Privacy an appeal, we can help you determine Commissioner (OPC), for example, reported in 2010 that 77 per the final outcome for your client. cent of employers conducted background checks on prospective employees and that 35 per cent have eliminated candidates based on what they discovered online. Some employers have gone so far as to ask job candidates for their Facebook passwords. But employers who use these tools risk violating candidates’ human rights and exposing themselves to human rights chal- lenges. A single Facebook profile photo, for example, can reveal information that is protected under Charter and human rights codes and which may or may not be accurate or up-to-date. This includes marital and family status, sexual orientation, age and ability. “Privacy people often say to employers: ‘If you looked at a Facebook page and you found out that your candidate was gay or had a political view that you don’t like or has children, and you choose not to hire them, are you exposing your company to the risk of a loss, a human rights action?’’’ says Levine. The OPC, the Office of the Privacy Commissioner of Canada, and the B.C. and Alberta privacy commissions have published guidelines to help organizations negotiate the risks and benefits of using social media to conduct background checks and respec- tive employees. In a nutshell, says Currie, employers need to develop a rigorous policy or procedure to address these checks. They must be done with the candidate’s consent, and should not be conducted by the decision-maker, who may be exposed to To sign up for the Lerners’ Appellate Advocacy irrelevant or protected information. “As an employer, you don’t Netletter, visit www.lerners.ca/appealsnetletter want to have to try and defend your recruitment selection if you’re challenged by somebody who wasn’t hired because you did a social media review,” she adds. Toronto: 416 867 3076 In the face of the potential risks, she cautions, employers should Earl A. Cherniak, Q.C., William Pepall, Kirk Boggs, ask themselves if there's a real need to go on Facebook: “What’s Mark Freiman, Kirk Stevens, Jasmine Akbarali, Brian Radnoff, Cynthia Kuehl, Jason Squire, Stuart Zacharias wrong with the face-to-face interview and the application form and so on?” London: 519 672 4510 It’s a good precept — one, perhaps, that both employers and Peter Kryworuk, Andrew Murray, Carolyn Brandow employees need to keep in mind as they continue to navigate the murky waters of privacy in an online world: in the absence of guidelines or legislation that pertain specifically to the internet, think about what you’d do in a bricks-and-mortar situation, and act accordingly. In the end, if it’s not kosher in real life, it probably isn’t online. www.lerners.ca Susan Goldberg is a freelance writer based in Thunder Bay.