From Crackberries to Facebook Anonymous

Addiction to technology or devices is reality even if much of it is in the virtual world. That sounds either trite or daft or both but I think you know what I mean. 

There was a time when you could see the bowed heads of grown men staring into their laps apparently fiddling with their genitals - what a relief when you found out that the reason they haven't being paying attention was because they were playing on their Blackberries. Imagine our surprise to find some weren't - but that's another story.

In an office of someone I know, the secretary in the small team used Facebook so much during the day to communicate with few friends that her manager, sitting next to her and watching her habits, sent her a Facebook message to make some tea. The person in question without saying anything simply got up, made some tea for everyone then sat down and resumed her Facebook 'work'. The manager sent another message to thank her and she even responded to that. It was the tail end of what had been an unhappy employment experience for both parties.

I worked with a company where they had 90 people on a main sales floor and everyone of them used Facebook to communicate to people not more then a few feet from them. It was probably the most unproductive sales team I have ever come across.

This isn't necessarily an age thing as older employees are as likely to be heavy Facebook users as younger ones but I am sure the statistics will prove a point about the new generation of workers. Many companies are starting to formulate policies on use of such services like Facebook, Twitter and even LinkedIn during business hours. We have already had a landmark legal case where an employee who used LinkedIn for work was found to have violated client confidentiality and non compete clauses in their contract of employment by simply using the same LinkedIn account at a new firm.

But addiction is more than that. Genuinely, many of the new social media applications are fast becoming like the chat sites at the turn of the millennium where many employees got sucked into nattering inanely online during work hours. Instant Messaging is still an issue. For many companies, the recording of IM messages remains a taboo subject but should there be legal cases surrounding such communications such as in employee tribunals or libel actions, these forms of communications are just as likely to be called as evidence as emails.

We have seen the use of social media grow to make legal issues complex such as the 'outing' of identities in super injunction cases and the jurisdiction of law is not at all clear. But addiction comes in many forms and it could be argued that simply believing that what you say in 'private' on Facebook, Twitter or any other form of interaction not controlled by your company directly, is your own business.

It is not at all clear whether that is the case or will continue to be so. There was a recent case of a Dutch website which hosts a community of kids and teachers and some of the anonymous accusations against students and their teachers have been far beyond good taste and into the realms of libel and slander. The site in question basically says that you should comply to the law of the land where you are based when using the service. Which sort of makes a mockery of Terms of Service. It also means that legal issues are reflected at the source of the issue.

Addiction to social media has relevance beyond non-productivity in work time which is a huge issue in itself but it has potential deep legal ramifications. As users naively continue to chirp away merrily on any number of internet hosted sites they are potentially storing up some problems.

What they say while sat at work, during work hours may never be as private and free to say as they think. 

Here's gut feel prediction for 2012, I think one or other of the major social media sites may get involved in at least one corporate case where an employee has compromised the professionalism of their company by saying things they shouldn't have - either about fellow employees or managers or rival firms. I predict we may get a few landmark cases on this in the UK soon.

How do you prevent it? Well I think you can have company policies and that's fine for those people who are fully attached to the corporate network. But for those attached as guests or accessing via mobile telephony via tablets or smartphones there may be more problems. In terms of weaning people off such social media addictions, I honestly think we'll see some Facebook Anonymous groups popping up in the not too distant future.

The world is changing fast thanks to the enhanced ways we have to communicate. That may not always be a good thing. There is such a thing as anti-social networking and there is such a thing as lack of productivity.

I think both of these things will become bigger issues in the next year or two.

Funfzig lashes if you please, Judge

Max Mosley is some guy. If secretly filmed in a sordid sex session with a bunch of dominatrix paid-for ladies I would wager most people would be horrified and embarrassed, and possibly shrink from public life. It surely would be difficult to look loved ones in the eye and friends too - and goodness knows about work colleagues and business associates. Wouldn't we? Or am I living in a different world?

Not so Mr. Mosley. He actually turned the tables and made the whole thing a breach of his privacy. That takes some chin, but then again he's from a family not short of sticking its neck out and indulging in something repellent to most sane and decent-minded individuals.

What Are The Real Implications?

It was a bizarre affair that you couldn't have made up.

When a key witness did not show up the Judge in the case, Mr. Justice Eady, invoked the Human Rights Act to support legal action against the News of The World which had published the story and film to effectively expose his moral shortcomings, an age-old right of newspapers. Former Lord Chancellor Lord Falconer stuck with his old chum and said the Judge did the right thing. Interesting.

Mr. Justice Eady ruled that the paper had breached Mr. Mosley's privacy while he had taken part in a sado-masochistic sex session with five prostitutes, in the process falsely claiming that it had a Nazi theme - which confused all of us who actually looked at the thing. I wonder why Max and the ladies didn't speak in menacing West Wales accents - surely it would have had a similar effects or perhaps we should ask the Judge.

In fact Justice Eady claimed Mr. Mosley was entitled to privacy for consensual 'sexual activities (albeit unconventional)'. It seemed to omit the fact he paid the ladies for the consensual activities, but no matter.

Enter The Daily Mail

I don't have a massive amount of time for newspapers editors, I think they do regularly overstep the boundaries of privacy. But in this instance, frankly Mosley had it coming. Paul Dacre, Editor-in-Chief at the Daily Mail, at the Society of Editors annual conference contended most people would consider Mr. Mosley's activities to be perverted and depraved.

I would draw readers' attention to my previous blogs on Denial as a Coping Mechanism. Psychopaths use the power of denial to distance themselves from their actions otherwise they surely would be overcome by their enormity while we regularly use denial to cope with deal with bereavement or similar. Mr. Mosley uses denial to make us believe the problem is with a warped newspaper who think his privacy is more sacrosanct than his depraved activities.

Dacre rightly points out the particular Judge has 'Form' on such rulings and contends that he is effectively passing laws. Even the PM would have had to set out a bill and get it passed by both Houses, a passage which everyone knows is no 'slam dunk'. Not so Justice Eady, asserts Dacre.

'...one judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen,' said Dacre. 'I would personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about - the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.'

Do We Agree?

Clearly the power of the vote of motorsport's governing body for whom Mr. Mosley works, do not agree - they gave him a vote of confidence although it might be alleged Mr. Mosley was happy to have accepted lashes instead.

I do agree this has a an implication for newspapers and society generally. If we extend Justice Eady's judgement then we may never know if politicians like Mandelson, Mellor, Blunkett, Conway, Hamilton or others far worse are doing anything which we ought to know about. It does have implications - it's called trust. While sexual activities may be a private matter in general, if you are in a high profile position or indeed in any where your actions may be construed by others as odd, depraved or unusual, do not be surprised if you take a fall. This applies to everyone when you think about it.

But here's the rub. Max Mosley slipped out of the situation because he has money. A great deal of it. If an employee, whatever rank in a company, had a video of his or herself published on YouTube of even an embarrassing incident let alone sexually depraved act they might possibly be disciplined or worse if their employers got to know. While they might argue a breach of privacy, the fact is they took the risk knowing the repercussions.

As usual in life, just as Formula One getting dispensation to get cigarette advertising a special dispensation even when it is clinically proven smoking harms health and can kill possibly with a greater risk than driving an F1 car, money talks.

Conclusion

All senses of morals say that a man in his position has betrayed the trust of his employer, wife, family and friends but that doesn't mean a jot and it outraged a lot of people who cannot understand how he keeps such a highly paid, high profile, ambassadorial job in a sport we love - in year when we have a British world champion to be proud of.

It makes you think it's a sport, much like banking, that is unhealthily in the hands of very few people who make more money than we could imagine. Perhaps it's time they joined the real world and got some sense of values and perspective, then they may actually realise this wasn't about privacy it was about trust.

New Employee Background Checks - Good Practice or Breach of Privacy?

'Criminal records on sale for just £37', was the headline on Page 7 of this week's Sunday Times.

The article referred to the growing practice by employers and corporate investigators (numbering 50 between them so far)buying access to files at the Criminal Records Bureau (CRB) to do background checks on new employees. The CRB was set up 6 years ago to carry out checks on prospective employees whose work would bring them into contact with children and vulnerable adults - i.e. to find out if the prospective employee was unsuitable for that kind of work.

However, certain recruiters and employers are now getting access to CRB files to check the background of employees who are applying for jobs which do not involve access to children or vulnerable adults.

These agencies are now offering these unlawful checks to cover potential business partners and staff ranging from clerical staff to web designers.

Is Enhanced Disclosure Good Practice or Unlawful Prying?

One firm mentioned in the article offered to carry out 'Enhanced Background Checks' of administrative staff for companies claiming they were justified, caveatting this with the employee's consent should be sought although the firm's director admitted that they had not 'thoroughly checked' whether such permissions were given.

Another firm specialising in the same practice operated out of Essex but was headquartered in New Zealand claiming its Essex office was 'registered' with the CRB to have access to such records, although it confirmed it was not 'accredited' by the CRB.

The question may be arising - is this such a bad thing? After all, it is very important to follow up references given by employees rigorously and I would always recommend employers do this diligently and, if possible, cross reference the information. In this I mean, if possible, test whether a claim in a candidate's CV is spurious or not such as attending Chairman's Club or winning a specific deal etc when asking the referee. Of course, the referee may exercise the right of no reply which should not be taken as a denial but most referees will usually corroborate true facts.

So would getting access to the CRB files be further good practice or diligence? To give an example of the downside, the article claims that one such background check found that a complaint made to the information commissioner revealed a CRB check on an individual had shown the person had stolen a packet of meat worth 99p in 1984 when the person was just 16.

Where Does The Law Stand?

The article cites the landmark case of a gardener who was fired from their job after an 'Enhanced Background Check' had revealed two spent offences. He claims the checks were unlawful and unwarranted. The information commissioner has supported his claim which goes to court seeking compensation.

The CRB helpline was found to aggravate the situation as when one complainant called the person was told it would be prudent to comply to have the check done or face not being employed.

The fact is that the law is cloudy rather than clear. Such checks are specifically designed to stop sex offenders having jobs which involve children or vulnerable adults. If there is no suggestion of either being involved, then such checks are not justified.

What Ifs?

So if an employer suggested that a gardener may come into contact with children whilst carrying out their duties, would that be justified even they 'stretched the truth'? And what if a sales manager were to be in contact with unmarried young ladies, would that be justified on the grounds that the employer might want to know if the prospective manager had a history of sex offences, and in doing such checks just happened to find out the person's misdemeanour 20 years ago involving persistent apple scrumping?

What the report did reveal is that detailed financial checks can be made for as little as £20, police files for about £40, driving for £20 and identity at around £20.

Where Do You Stand On This?

As a person making decisions on behalf of a company that will cost significant money in terms of recruiting fees, compensation but also opportunity cost for making a wrong decision would it not be good, if not, even best practice to do as thorough as possible background check to minimise risk?

I remember a famous incident of a quasi-government Agency (Note how vague I am being) who employed a Finance Director with apparent impeccable credentials and background. He subsequently allegedly hired a hotel room to 'interview candidates in bikinis' for the post of Assistant. The person subsequently flew to Chicago via Concorde to New York, checked into an expensive hotel and found that his meeting had not been confirmed and so flew back again. It was later revealed the person was bogus.

Closer to home, when I worked at a computer reseller, we employed a Scottish salesman who shared a name with a rather famous Spaceship Captain. He was larger than life in many respects including the fact it was not his real name and he had no fixed abode - we only found out when police popped by asking questions about him for various other reasons. There was also the recent case of the chap who passed himself off as a Forensic Scientist for many years and participated in many trials as an expert witness only to find he was just the local lad from a pub.

The fact of the matter is that employers should be able to mitigate risk as much as possible and protect themselves from potential 'rotten employees'. However, you have to also to temper this with the fact that a minor misdemeanour involving alcohol and some clumsily broken glasses in an Indian restaurant 23 years ago really was just a one off piece of high jinks that should have been settled with a cheque for a few quid, a dustpan and brush.

Information in the 'Information Era'

We do live in an era of unprecedented amounts of stored data. Much of this can be more easily accessible than we think even if we use the most sophisticated firewalls as more and more data is actively lawfully and not sold by agencies holding the data or even lost by daft employees getting their laptops or memory sticks stolen or even archive agencies flogging their old PCs on eBay. Our information is freely surrendered to all and sundry and can be accessed far too easily. And the embarrassing misdemeanours of the past can be more easily brought to light.

But is it fair for your employer to know you might have had a telly repossessed 15 years ago when times were hard or that you served a driving ban 10 years ago even though you don't have a company car in the job? Or is it sound information to have at hand when deciding on candidates to know one was arrested outside the House of Commons in a gay Rights march and the other was not?

I would be really be interested to hear your views.

We Are All Equal, Just Some More Equal Than Others

Ageism is dead; Long live ageism!

We could go on for hours with these pithy remarks but how ground breaking is the news the the new Equalities Bill will finally put an end to ageism? I can tear up my gym membership and pour the Grecian 2000 down the drain - I can now look a prospective employer in the eye and say, 'I dare you not to give me this job. I have Harriet Harman's phone number, you know.'

But what is best about the new Equalities Act is that it is now legal for firms to discriminate in favour of females and ethnic minorities job candidates.


Legal Logic

I used a computerised Mr. Spock Test of Vulcan Logic on this part of the act and unfortunately it got a bit emotional and told me it did not compute. You see if you positively discriminate in favour of someone then in fact you have discriminated against someone else.

No, no, that's not what Harriet meant at all. What this actually stops is companies not just choosing from 'a pool of friends of friends' which is very rife in business as we all know - well at least in Government it is. You see when you positively discriminate in favour of a woman over a white male it is because the company in question 'Might think we don't want an all male team'. Very good point, if you have an all male team.

Right, so back to the logic machine. So two candidates with similar credentials and experience, one white male, one female for example. The Company in question invokes positive discrimination and chooses the female. So would the white male not think, 'Hang on a minute, she got the job because she's a female - that's not fair'.

Positive Discrimination, sound as it may appear, is one of those circular arguments similar to explaining time travel - sooner or later logic will go right around until you eventually disappear up your own backside.

But Harriet explains that we do not have to argue ourselves into oblivion. You see while it is now legal to positively discriminate you are not obliged to do so. As Harriet explains very clearly, 'The law at the moment is not clear and we are clarifying and saying if you want to do it, you can, and it makes it much more open.'

That clearly clarifies that then.

My Mr. Spock Program went into meltdown but before it did it posed a number of 'what ifs'. Suppose you have a female and an ethnic minority person going for the same job with similar credentials and experience? What if you have a significantly older white man and a female or ethnic person in the situation above? What if you have two females in the above situation, but one is gay or older? What happens if you have a female and an ethnic man in the same situation? The machine blew up at that point although the last output before it flickered off said, 'Why make this optional if you are sure positive discrimination is the right way to go?'

The Good Parts

It was not all illogical. The rest of the Bill deals with getting some sense into the wage gap making Companies more open about pay scales between men and women and that is a very good thing. Further, the Law will enforce doctors to treat pensioners who have been denied treatment because of their age, which is interesting as this seems to have inflamed in the last 10 years while the NHS has been bombarded with budgets and targets by the same Government. The caveat is that the same doctors can refuse the treatment on clinical grounds - would such a clinical ground be that the pensioner has less time left to live, I wonder? Even better though is that Age Discrimination will be outlawed in the holidays and insurance business. Quite where that leaves Health Insurance actuarial calculations I don't know.

But before you pensioners call Club 18-30 it's exempt. However, there is nothing stopping me being on your next Saga Holiday.

Are we Better off Then?

I have no idea. Certainly the Bill is unlikely to have been drawn up by anybody who employs people because it just seems so daft. Positive Discrimination is either right or wrong; making it optional is absurd. But more importantly, how on earth do you properly decide and act within the law? How similar do the credentials have to be to allow positive discrimination to be invoked? What are the repercussions if positive discrimination is used and it is subsequently proven all was not equal after all? Would the white male blighted by the decision have a case in law to claim actual discrimination as opposed to being positively discriminated against? Finally, why wasn't age included in the positive discrimination part - would that also have been logical if this was so much of an issue?

I can hear the Employment Law eagles tapping their calculators furiously as the answer is 'Billable Hours'. Hands up all those in Government who are lawyers by qualification! Quite a few - my, my is that not a strange coincidence.

David Davis - Political Stunt-man or Hero to the Cause of Civil Liberties?

Well he made his way to the Treasury and resigned as an MP, but unlike the last high profile resignation (Tony Blair) he fully intends to continue as a career politician at least. I'm talking about Conservative (former) MP, David Davis and his bizarre method of making a stand against the Government's newly won legislation which allows authorities to detain suspects up to 42 days without charge.

I am a huge believer in freedom and particularly civil liberties and in general the need to hold someone without charge for 42 days I believe is a massive erosion in civil liberty. But when used in the context of terrorism and its prevention, I think it requires more flexibility. I do ask the question, what can be found out in an extra few days that cannot be found out in existing detention time but I understand the potential need. I also think that we need to allow more forms of evidence to be used such as phone-tapping and in some ways would this negate the need to hold someone that long?

Political Stunt

But you cannot help feeling this is just a self-seeking political stunt by Davis designed to embarrass the Government and bloody Gordon Brown's nose. As I write, Labour have confirmed they will put no candidate against Davis in the by-election. So he will be just running against a few other candidates as the Liberals have also withdrawn.

It is also a weird system that allows an MP to resign and then fight the by-election again. It's an expensive and wasteful use of energy, time and money. Initially I thought he had voted with his true conscience and actually stepped away from politics in disgust, instead it seems to be just some puerile gesture to gain publicity and wound the Government.

Is the Cause the right one?

In reality, there are a lot of issues worth debating with this Government in a by-election. On a day when 4 British soldiers died in service in Afghanistan, bringing the toll in the last week alone to major levels, should we not be asking why are we risking the lives of our young, brave professionals in an increasingly bloody and futile war? The aim was originally to find and capture Osama bin Ladin but it appears that was never an agenda item. And to Iraq as well, a far more questionable war indeed. So when Davis considered that the detention of terrorists was worth staking his political career on, did he not think that the public may be equally concerned about civil liberties as terrorism? It is arguably a balance betwen freedom and security when used properly.

In my opinion, I think this is not where the fight against the Government should be. I think this is personal grandstanding and headlining designed to increase Davis' own popularity and try to further his career. My opinion of him, such as it was before, has gone down appreciably.

Are Your Social Network Contacts Owned By Your Employer?

I read recently on Peter Gold's Talent Technology Blog and in yesterday's Daily Telegraph that a former employee, Mark Ions, of recruitment firm Hays has been ordered to hand over business contacts built up on his personal page of the social networking site Linked In.

The Telegraph article says, "The decision is one of the first to highlight the tension between businesses encouraging employees to use social networking websites for work but then claiming that the contacts remain confidential information at the end of their employment".

The ramifications of this decision are quite scary. While it is implicitly obvious that if your firm has invested in CRM technology like Salesforce.com or ACT! as a business tool to manage your business contacts and interactions that you regard the contacts and information contained as the company's property and therefore are covered by confidential information clauses in your contract, it is almost certainly not the understanding of most employees that the business contacts they accrue on sites like Linked In are also bound by these contract clauses.

Now there may be special cases at work here. The recruitment industry has particularly taken to sites like Linked In which has revealing profiles of over 23 million people with current job titles, career information and sometimes contact information. It has been a particular gold mine for recruiters to not only find potential candidates for jobs but also to network as widely as possible to a) increase their chances of getting recruitment assignments and b) increase their working database of potential candidates. If you were to look at certain recruiter contacts on Linked In you would quickly realise that their 2500+ connections cannot possibly be anything than their office Rolodex of business contacts.

How will this affect Social Networking in Business?

This is perhaps the most important question. Linked In's official response to the decision was from 'a spokesman' who said that its members should not use the site to publish information that they have no right to disclose, such as insider, proprietary and confidential information. "It is important that customers abide by their current employment contract and ensure that they have the right to use the information provided."

This is a surprisingly uncontroversial statement from a company that thrives on business networking. This is a company that has built up its 'customer' list based on individuals signing up and freely entering their information on a publicly-viewed site knowing full well that their details can be viewed by other members of the site. Further many of the members have listed their interests as seeking new job opportunities. In other words, they could be construed to be 'fair game'. In most instances, sign up is for free. Similarly, the search facilities to find people by job function, keywords, locations, company names are quite sophisticated and lend themselves to recruiters or similar browsing to find juicy contacts for their next sale. Linked In has positioned itself well to cater for both needs, so why the non-committal response to this case that damages freedom of use by the individual?

Linked In has more recently started working with Corporations to look at providing some different services for companies. Advertising for jobs and services is one important area but there is no doubt that Linked In is slowly, having accumulated a vast list of business contacts from around the globe, repositioning itself as an online CRM system of sorts.

In Linked In's attempts to further 'monetise' its member base it is now marketing itself as a Corporate service having grown from a focus on the individual, not worrying who the person worked for. It is a subtle change in focus that justifies the spokesperson's statement perhaps. But perhaps gone are the days of Linked In being a Social Network, it is now very much a Business Network and is in the camp of the employer.

Ramifications

I should mention that I am not a lawyer and so consider this as my personal opinion only and should not be considered a legal opinion.

The clear ramifications are for those who do their prospecting via Linked In as part of their company's business. Recruiters fall slap bang into this category and Hays is the first to make a call on this and test it in law - with a successful outcome. But does this also affect everyone else who uses Linked In or similar networks at least in part for prospecting for business on behalf of their company or themselves in company time?

I think it does and certainly it calls for people to review their strategy in using Linked In at a personal level in order to increase their business network and win more business for their companies. Recruiters should certainly be concerned about this and seek clarification from their employers. I would suggest that employers should also be more clear on what constitutes confidential information as contract clauses are notoriously woolly and online social/business networking is a relatively new phenomenon which needs some special attention. Sharpen your pencils HR managers.

The interesting aside is how Mr. Ion's solicitors (Jonathan Stokes Solicitors) presented the case on his behalf. From my point of view, I would be concerned about data that is not within the Corporate firewall or VPN and freely available on the internet being considered company confidential, particularly if it has not been paid for.

Rivalry

Linked In has been slow to monetise its membership from a Business-To-Business stand point. There are firms such as Jigsaw who have made a business on exchanging 'business cards' between contacts to build up data lists which can be filtered and then rented for mailing use. There is already plenty of legal thought about this type of service as the act of giving someone your business card or details has an inherent confidentiality associated with it and it does imply that the data is not to be distributed without permission - yet Jigsaw relies on that free distribution.

Linked In seeks the best of both worlds. It wants the data to be freely available and has the consent of its members to make it so, but it also wants to side with employers who encourage its employees to use Linked In to further its business, ultimately because it wants those employers to spend money with Linked In and therefore give some comfort on use of data afterwards.

Should we be scared?

I think so. This precedent has wide ranging implications beyond Linked In, although it is the major business to business network at the moment, others like Plaxo, Xing, Konnects, Viadeo etc fall into similar categories. With the rise of instances of Corporations involving themselves in networks such as Facebook, Flickr, Twitter, Bebo and the rise of the Corporate position of 'Chief Networking Officer' the emphasis on the 'Social' is moving toward the 'Business' in networking.

Then again, to monetise all those juicy names, we knew it always had to. The party may well have been spoilt.

Footnote

Yesterday Linked In by coincidence raised finance of $53m valuing the company at a tad over $1bn. In discussing the implications of the ruling in favour of Hays, a friend pointed out the possible implications for each of us who has a profile on Linked In. We postulated that if Hays claimed some kind of 'possessary' title over the data accrued by the employee, then we wondered if that was made aware to the people who had connected with the Hays employee? Or indeed were any of us by connecting to anybody who solicited a connection, implying that our contact information could be used by a third party (i.e. the person's company) to use the data in whatever way it wished - for instance to be added to the corporate mailing list? Or indeed are we always assuming that we are connecting with an individual who we are think will help us achieve some of our goals like get a new job?

I am not a legal person, but it certainly I have experienced daft emails from recruitment companies advertising inappropriate jobs because of their loose keyword selection. Am I now to assume that when I connect to anyone at Linked In I am implicitly handing over my personal data in Linked In and contact information for use by a third party to do whatever they wish with? Or is there a law that protects me here in the UK or abroad? I know some will leap up and shout 'Data Protection' but the question might arise, where is the data stored in the UK or USA and so where is the governing law? There may be perfectly good answers to these concerns but at a time when Linked In have raised $56m is there a potential that the sheen on the service has been tarnished?