Employers are increasingly scrutinizing candidates’ use of social media such as Facebook, Linkedin and Twitter as part of their hiring due diligence. While most investigations have been fairly benign, amounting to nothing more than viewing social media postings by the candidate, some employers have begun employing more aggressive techniques, such as requesting candidates to provide their Facebook passwords. Potential employees have cried foul to these requests, claiming that they violate their ‘right to privacy’ and should not constitute part of the employers’ due diligence processes.
These privacy concerns not only apply to hopeful job candidates, however, as employers may also want to use information of existing employees considered private for the company’s own social media pages, such as to promote their business and to recognize contributions by certain employees. For example, a law firm may wish to post the biographies of each of its lawyers on a firm website in order to promote the firm’s services. On the other hand, a distributor may wish to post photos and other personal details of sales staff who exceed certain sales targets. While there has not yet been any specific legislation in Thailand setting out the rights to privacy for employees in the context of social media, we can get an idea of how existing privacy-related laws in Thailand might be applied against an employer.
Do Employees in Thailand have a Right to Privacy?
While there is no specific legislation providing employees of a company (or anyone else for that matter) with a right personal privacy, Section 35 of the Thai Constitution includes a broad privacy right to all persons as follows:
Section 35. A person’s family rights, dignity, reputation and the right of privacy shall be protected.
The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person’s family rights, dignity, reputation or the right of privacy, shall not be made except for the case which is beneficial to the public.
A person shall have the right to be accorded protection against undue exploitation of personal data related to his or her individuality, as provided by law.
Thus, assuming that the violation of someone’s privacy rights was not carried out with any benefit to the public, an offended party may seek recourse under the Thai Constitution.
Section 420 of the Civil and Commercial Code also contains a general provision on ‘wrongful acts’ that can also be invoked by any persons whose right to privacy is in any way affected (although the catch-all “any right of another person” in Section 420 would refer back to the privacy right under Section 35 of the Thai Constitution).
Section 420. A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation thereof.
Some well-regarded Thai legal academics have found an additional privacy right under Section 18 of the Civil and Commercial Code concerning the right to the use of a person’s name also covers the use of a person’s photos and voice recordings (Prof. Jitti Tingsaphat, The Civil and Commercial Code: Persons (6th Edition), Bangkok: Thammasat University, 1986, page 29 and Asst.Prof. Kittisak Prokkati, Civil Law: General Principles on Natural and Juristic Persons (2nd Edition), Bangkok: Thammasat University, 2007, page 31).
Section 18. If the right to the use of a name by a person entitled to it is disputed by another, or if the interest of the person entitled is injured by the fact that another uses the same name without authority, then the person entitled may demand from the other abatement of the injury. If the continuance of the injury is to be apprehended, he/she may request a court to order a prohibition.
Unfortunately, there is no clear court precedent supporting the academics’ claim.
Suggestions for Employers
Given the current state of Thai law, it is evident that employees can expect to have a right to privacy in the workplace and that potential employees have a right to privacy with respect to their passwords for their own social media pages. For example, an employee may be able to prevent an employer from using an employee’s photos without consent by claiming such use is in violation of Section 35 of the Thai Constitution, as such use is not ‘beneficial to the public’, and is instead only of commercial use to the employer. (Under Section 420 and 18 of the Civil and Commercial Code, the employees would also need to establish that they were somehow injured by the employer’s actions). Although changes in the law are likely as social media becomes more prevalent, it would be advisable to get employee consent before using any personal data on a company social media page. Such consent could be granted prospectively through a provision in their employment agreement, for example.