A bill approved on August 25, 2010, by Germany’s cabinet for introduction to the German Parliament would restrict employers’ use of social media in the recruitment process. Many multi-national employers are still struggling to implement a policy governing the use of social media in their U.S. workplace. Before multi-national employers even complete that task, or catch their breath from doing so, they need to confront the question, as the German proposal suggests, whether the version 1.0 social media policy addressing only U.S. employees can be lawfully applied to non-U.S. employees.

The issue is far from academic. Facebook, which surpassed 500 million users earlier this summer, has hundreds of millions of non-U.S. users. In fact, according to a survey by NielsenWire, monthly time per user spent on Facebook exceeds the U.S. average of 6 hours and 43 minute in Australia (7 hours 45 minutes), and Italy (7 hours) with the United Kingdom not far behind at 6 hours 19 minutes. Latin America was Twitter’s fastest-growing market between June 2009 and 2010 with users increasing by 300%, followed by Asia Pacific with a 240% growth rate, and the Middle East and Africa where users more than doubled.

At the same time, the social media juggernaut has been so rapid that no one body of law in any country yet governs an employer’s ability to access and use social media content for hiring and disciplinary purposes. In the U.S., for example, private employers need to consider the federal Stored Communications Act and state computer trespass laws, the Fair Credit Reporting Act, the National Labor Relations Act, federal anti-discrimination laws, state laws protecting employees against adverse action based on lawful, off-duty conduct, and potential common law claims for invasion of privacy and unreasonable disclosure of private facts.

The German bill appears to be one of the first pieces of national legislation aimed specifically at regulating employers’ use of social media content for employment purposes. Under the current version of the bill, employers would be permitted to access only social media content that the applicant makes publicly available; social media content limited to “friends only” would be off limits. Ironically, a case last summer that resulted in a verdict against Houston’s Restaurants for unauthorized access to an employee’s friends-only site effectively drew the same distinction, albeit based on the federal Stored Communications Act, which was enacted in 1986, long before the Internet as we know it had evolved.

While the German law still needs to work its way through the legislative process, U.S. employers should expect that data protection authorities and privacy advocates in other countries and in the United States are watching. It likely is just a matter of time before many countries have enacted a body of “social media law” that will make drafting a global social media policy as challenging as drafting a global privacy policy. In the meantime, multi-national employers should consider surveying foreign laws in the areas of access to electronic communications, privacy and data protection, and labor rights before applying a U.S.-based social media policy to applicants or employees located in other parts of the world.

This entry was written by Philip L. Gordon.

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