This month, we consider whether employers can conduct background checks by way of social media/internet searches on prospective employees, focussing on the position in Singapore, Hong Kong, Japan and South Korea.
| Country | Is it legally permissible to run background checks by way of social media/internet searches on prospective employees? | Is consent required before such background checks can be conducted? | Can the information obtained from social media and internet searches be shared with the employer's group of companies across jurisdictions? |
| Singapore | Yes. | No consent is required if the checks involve obtaining information that is publicly available. However, under the Personal Data Protection Act 2012 ("PDPA"), employers may only collect and use personal data for purposes that a reasonable person would consider appropriate in the circumstances (the "Purpose Limitation Obligation"). | Yes. There are no legal restrictions in relation to the international transfer of publicly available data. |
| Hong Kong | Yes. | Yes. Unless the original purpose for which any information is in the public domain is the same as the purpose for which it will be used (i.e. if the data was made public for the purpose of an employer/ potential employer running background checks), the applicant/employee should be informed of the purpose of the collection of such data. | Yes. However, Section 33 of the PDPO states that a "data user" may not transfer personal data outside Hong Kong, except (and only) if one or more conditions are satisfied. Those conditions include, for example, where:
Although section 33 has not yet come into force and no date for it to be brought into force has been fixed, the PDPC has published guidance which encourages all data users to comply with section 33. |
| Japan | Yes. | Generally, no consent is required for such checks.
However, the Employment Stabilisation Law prohibits an employer from acquiring certain types of sensitive personal information for the purpose of recruitment. Such information includes information relating to an applicant's/employee's union membership, place of birth/familial home/registered permanent residence (i.e. domicile of origin or honseki in Japanese), use of alcohol/drugs, family (e.g. whether a female job candidate/employee intends to have kids), politics and sexuality. |
Yes. However, under the amended Personal Information Protection Act, which came into effect in May 2017, the consent of the applicant/employee is required before an employer can transfer personal data to an overseas entity (including to a parent/group company), whether or not the information is publicly available. |
| South Korea | Yes. | No consent is required if the checks involve obtaining information that is publicly available. However, notice that such checks will be conducted should be provided to the individual. | Yes. However, the data subject shall have the right to be informed of the identity of the third-party disclosee and its jurisdiction. |
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
Herbert Smith Freehills LLP has a Formal Law Alliance (FLA) with Singapore law firm Prolegis LLC, which provides clients with access to Singapore law advice from Prolegis. The FLA in the name of Herbert Smith Freehills Prolegis allows the two firms to deliver a complementary and seamless legal service.