by Boyce Recruitment on July 21, 2014

posted on Miscellaneous,

How might the ‘right to be forgotten’ ruling affect candidate background checks?

One of the most common forms of pre-employment screening takes place online: the internet search. Trawling through Facebook, Twitter, LinkedIn and wherever else to determine when and how an applicant’s name appears.

It’s useful, undoubtedly. Using LinkedIn, for example, can often provide recruiters with additional information beyond the CV to help them decide to progress or reject an individual. Most recruiters and savvy hiring managers will probably admit to Googling applicants – it’s pretty much standard practice these days.

News in May, therefore, that the European Court of Justice (ECJ) has ruled in favour of removing old, irrelevant or inaccurate information from the web at an individual’s request may well have a bearing on what recruiters are able to find and use when vetting. To what extent could this ruling have an impact on candidate background checks?

The ruling

Following a complaint to Google about a comment left on BBC journalist, Robert Peston’s blog in 2007, the ECJ took the unprecedented step of issuing a ruling which grants ‘ordinary people the right to be forgotten online’, according to scotsman.com. It will allow people to send a request to Google, Bing and eventually other search providers, to ask for links to certain outdated information to be removed from the web after sufficient time has elapsed. Individuals could therefore successfully eradicate links to any information which – in the ECJ’s words is deemed ‘inadequate, irrelevant or no longer relevant, or excessive’. The information would no longer appear on the search rankings and will remain, effectively, hidden.

The immediate effect on screening

Understandably, many experts in the recruitment field and beyond have picked up on the fact that this could cause some problems when carrying out pre-employment screening. After all, the internet is relied upon fairly heavily by recruiters and hiring managers to vet applicants. Used responsibly, it can yield some valuable details. If access to certain data is removed, will it enable the ‘wrong’  candidates to be hired? Could it cause serious difficulties? Or is it better for people’s job prospects?

Makes it more fair?

One school of thought is that the removal of old, irrelevant information can surely only serve to make screening fairer. Searching the internet presents the opportunity for recruiters to stumble across information that they wouldn’t ordinarily be party to, which may prompt them to make subconscious decisions about an applicant. A criminal record, for example, does not necessarily mean that an applicant is unable to perform well in a role. What if the information that was posted was slanderous or not proven? Removing any associations between such information and an individual has got to improve screening, preventing recruiters from unfairly discounting people.

Negative notification

Or could it have the opposite effect? Will the removal of links instead cast doubts and suspicion on an applicant? Google’s senior vice-president for corporate development and chief legal officer, David Drummond said via The Guardian that the company is “doing our best to be transparent about removals: for instance, we’re informing websites when one of their pages has been removed. But we cannot be specific about why we have removed the information, because that could violate an individual’s privacy rights under the court’s decision.”

Whether or not private browsers will be alerted to the fact that information has been removed from the search results remains to be clarified. If a notification was to be made, might it give out the wrong signals?

Jonathan Zittrain writing for ft.com ponders the point, wondering whether a “specific notice that a search on someone’s name is missing something could lead to negative interference about the person – which might be worse than the substance of whatever has been removed”.

One idea has been that the search engines should keep ‘an independent database of takedowns’ but would this ‘resource’ then be similarly used in the screening process? Can the requests be used against the individual?

Individual rights versus public rights?

According to Mashable, Google has received more than 70,000 requests from aggrieved individuals requesting the removal to links since the ruling was made. However, one of the big questions raised is how to balance an individual’s right to be forgotten with the public’s right to know certain information.

David Drummond explained in this post that “in deciding what to remove, search engines must also have regard to the public interest. These are, of course, very vague and subjective tests.”

To date, the Advisory Council to Google has been appealing for public opinion on how the search monolith can ensure it strikes the right balance. Thus far, it has treated each request on a case by case basis, as Mr Drummond elaborates:

“When it comes to determining what’s in the public interest, we’re taking into account a number of factors. These include whether the information relates to a politician, celebrity or other public figure; if the material comes from a reputable news source, and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet “spent”; and if the information is being published by a government. But these will always be difficult and debatable judgements.”

Watch this space, then.

No effect at all?

Of course, with decent pre-employment screening practices, such as contacting former employers, obtaining copies of certificates and verifying dates, you should be able to find all of the information you require regardless of the ruling – so maybe it won’t impact recruiters at all? This might appear a naive suggestion, but there does remain an ethical decision over whether it’s right or wrong to use the internet – personal sites like Facebook in particular – for background checks. Employers weren’t party to such levels of personal information ten, twenty years ago and people were recruited into jobs just fine.

Noel O’Reilly, who posted an article on the subject in Personnel Today, told us his personal view of this “big topic” – that there were some lessons to be learned about the screening process and techniques that are in use: “Employers shouldn’t rely on social media too greatly for background checking,” he told us.

His opinion is echoed by members of the HR and recruitment community. One HR Business Partner said: “I guess it’s dependent on company size and governance. Take our organisation [global financial services], we use a combined approach to assess suitability. We don’t, as part of our formal process, use LinkedIn or Google, though I can’t say that managers haven’t attempted it. Our controls and processes probably are sufficient enough to check backgrounds without it having a big impact.”

However, he did concede that small firms without internal recruitment resources might suffer: “If, say, you were an SME of 150 people and you only have one HR role and not much governance, the right to be forgotten could have quite a big impact as you don’t have access to similar resources that large organisations do.”

Essentially, the point seems to be that recruiters and employers who use ‘good practice’ candidate background checking techniques won’t be impacted by the ‘right to be forgotten’ ruling. Their techniques would unearth anything untoward which is relevant to the applicant’s suitability for a role. As to those that do use the internet, maybe now will be a watershed moment, prompting them to ask a reputable recruitment agency or third party vetting agent to do the background checks instead?