There has been a phenomenal increase in the use of social media in recent times. Apart from connecting people, it is also being used as a platform for businesses, marketing, employment generation, and recruitment, and a forum for discussions and expression of opinions, propaganda, and personal lifestyle. Hence, there has been a rise in individuals, corporations, and government agencies having social media accounts on Facebook, Instagram, LinkedIn, Whatsapp, Twitter, Snapchat, Telegram amongst others, for the purpose of showcasing and connecting with people, as well as boosting sales, increasing marketing reach, developing clientele, and a medium for private and official communications.
The question, therefore, to be answered is whether individual social media comments, communications, and activities are private actions that are protected under the right of privacy as guaranteed by the 1999 Constitution, and as such whether an employer can validly conduct a pre-hiring screening on applicants or carry out disciplinary action against or terminate the employment of an employee on account of the applicants’ or employee’s social media behavior.
Social Media, Right to Privacy and the Implications on Workplace Policies
There is no legislation on social media use and pre-hiring checks as it relates to the social media activities of the prospective employees. The regulation of the Nigerian Communications Commission (NCC) which provides for Lawful Interception (LI) of communication (which will include social media communications) will not be applicable in this circumstance as LI relates to interception of communication by lawful agencies or as authorized by such agencies for the purpose of detection or prevention of crimes. It will however be argued that such pre-hiring and post-hiring inquiries into the social media activities of applicants and employees are unnecessary and unlawful intrusions into the privacy of the applicants/employees.
Where the applicant consents to pre-hiring social media checks, it will be doubtful if such consent was freely given because, the applicant being desirous for the job will be willing to provide any information requested by the prospective employer on the premise that he has no other option to do otherwise, but in normal circumstances, the applicant would ordinarily exercise the option of safeguarding his privacy.
An employer must respect the applicant’s private life as showcased in the applicant’s social media activities, and as such, the employer must not discriminate against the applicant in the selection process on account of the applicant’s social media activities. The view expressed here is that pre-hiring inquiries on an applicant’s social media conduct touch on the applicant’s right to privacy which must be protected against the employer’s desires to understudy and obtain useful insights on the applicant’s personality and values.
Can an Employee be Sanctioned on Grounds of Social Media Conducts?
From the foregoing, a similar situation for consideration would be whether an employee, a person that is already employed in a company, can be sanctioned or sacked on grounds of his social media conducts prior to or after being employed. Such social media conducts could be comments or activities carried out in the employee’s personal social media account or that of his employer. Can such actions constitute acts of misconduct or otherwise that could attract disciplinary action like query, warning, suspension, termination, or in extreme cases summary dismissal? In other words, can an employee be disciplined on account of his social media behavior?.
There has not been much development in this area of labor law in Nigeria, but several case law authorities abound in other jurisdictions. Indecent social media activities on the corporate account of the employer may be a valid ground for disciplinary actions against the employee, but it is arguable if similar activities in the employees’ private account can be a justifiable ground for disciplinary actions. An employer might be influenced to take disciplinary action against an employee for indecent and inappropriate social media activities so as to protect its (the employer’s) corporate legal and reputational risks.
The court of the United Kingdom has held that disparaging comments made on the private Facebook account of the employee about the employers’ products were considered sufficient ground for dismissal. However, it is not every inappropriate behavior or comment on a private social media account that will ground a dismissal. This was the case, where an Australian court held that messages which though are inappropriate which are not posted to the public on the Facebook wall of the employee’s Facebook account will not necessarily warrant the employer’s disciplinary action. The Canadian court has similarly held that inappropriate comments by an employee about her colleagues, supervisor, and company were not material to ground a dismissal, as the comments did not raise serious concerns about the company’s services.
The above seems to suggest that where an employee’s comments on his private social media account about his employer are not made public or where made public, they do not materially connect to his workplace or affect his employer’s business, then such actions may be excused from disciplinary actions.
On the other hand, where the social media activities do not relate to his employer but same are considered derogatory or inappropriate, will the employer be justified to take disciplinary sanction against the employee? It is therefore debatable on the direction the courts will take whether this will be considered an insufficient ground for sanction or otherwise. The opinion expressed here is that the ferocity of the comment and its damaging impact on the business of the employer may determine the justifiability of any disciplinary action taken by the employer.
The Nigerian Reality
Without any specific legislation on the issue, employers willing to avoid liabilities resulting from discrimination or breach of privacy rights may consider policies towards the protection of their businesses. Insertion of a clause in the employees’ contract of employment, employers’ handbook, or a standalone company policy brought to employees’ notice may suffice in this wise. It would, in this regard be treated as contractual and binding on the parties. Also, prospective employees may be given notice of possible social media checks. The above position may however be opposed within the precincts of constitutional guarantees and human rights provisions which do not give room for derogation. Further, actions such as the above by an employer or prospective employer could open the employer to discriminatory claims, especially where a feature stands out in the applicant’s social media biography.
There has been a recent attempt to regulate social media and provide a legislative enactment for same, by way of the introduction of the “Protection from Internet Falsehoods and Manipulation Bill, 2019”, otherwise popularly known as the Social Media Bill at the National Assembly. This has, however, met stiff opposition by the public. Some have argued that the recent ban of Twitter by the Nigerian government was an attempt to resume deliberations on the passage of the Social Media Bill. The merit or otherwise and implication of this bill, as well as the issue of the Twitter ban, are outside the scope of the discussion here. These will be considered in subsequent articles.
There may not be any decided cases yet on any of the above issues in Nigeria, but the reality of social media influences on employer’s pre-hiring process for applicants and disciplinary actions for employees are already taking their tow in the Nigerian labor and employment sphere. For example, the allegation by an employee of a national airline being sacked on 9th May 2019, seven days after he was employed as a catering handler, on account of his Facebook post for speaking in support of the opposition party in the State (the owner of the airline) against the ruling party in the State, alludes to the fact that employers are taking social media activities of employees more seriously than ever before, and disciplinary actions are now being taken by employers against employees on grounds of “inappropriate” social media comments/activities. The issue here however is different from cases of defamation and other similar issues of breach of privacy against some of these social media operators like Facebook which are already live cases in some courts across the Federation. Time shall tell the position of the courts on these matters.
The subject discussed above presents the need for our legislature to provide a framework for dealing with issues relating to arbitrary and indiscriminate workplace policies that seem to undermine the individual’s right to privacy. The National Industrial Court should be prepared to develop a jurisprudential direction for matters of this nature once they come before the court for adjudication. Apparently, the court will have to recourse to international best practices on this subject as obtainable in other jurisdictions.
Thus, while it is important to stress that pre and post-employment checks at the workplace on applicant’s or employee’s social media activities could infringe on the right to privacy and freedom from discrimination of the applicant or employee, such right must however be balanced against the relevance of the checks to the specific job roles of the applicant/employee in the employment.