Another Big Brotherr is Watching: Employer Acquisition and Use of Employee Social Media in China

Abstract

It is no understatement that social media has become a ubiquitous feature of our lives. In the People’s Republic of China, the popularity of social media usage continues to grow, particularly in the workplace setting. The vast quantity and range of data generated and shared on social networks, including personal information, have become a valuable resource for employers to screen job applicants, monitor work performance, and investigate employee wrongdoings. Developments in workplace surveillance technologies have also made it easier for employers to track, monitor, and access employees’ online activities. The legitimacy of employers’ inquiry into the online lives of job applicants and employees is often justified on the basis of business concerns about reputational risks, leakage of intellectual property and trade secrets, and other legal liabilities that could arise from employees’ social media activities. This article probes into a number of important regulatory challenges arising from employers’ access to and use of social media in China. It starts with an analysis of the extent to which privacy and data protection laws in China, including relatively recent developments in the Cyber Security Law and the General Provisions of Civil Law 2017, protect employees’ rights in this context. I then examine relevant cases brought before local courts that reveal how employers have accessed and made use of employees’ social media communications in a variety of common circumstances. From this analysis, three key issues remain unresolved by lawmakers and the courts: unlawful discrimination arising from the use of social media in recruitment; employee speech that may harm an employer’s business and reputational interests; and off-duty social media communications of employees. I conclude that extant regulatory gaps provide much scope for employers in China to monitor and inquire into employees’ social media activities, especially in light of the power asymmetries in the employment relationship.