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
Samantha Brown
Managing Partner, Employment, Pensions and Incentives, UK and EMEA, London
Steve Bell
Managing Partner, Employment, Industrial Relations and Safety, Asia and Australia, Melbourne
Emma Rohsler
Partner, Head of Employment, Pensions and Incentives, EMEA, Paris
Tim Leaver
Partner, London
Andrew Taggart
Partner, London
Fatim Jumabhoy
Partner, Head of Employment & Workplace Investigations, Asia, Singapore
Barbara Roth
Partner, New York
Christine Young
Partner, London
Disclaimer
Herbert Smith Freehills Kramer LLP and Prolegis LLC have established a Formal Law Alliance licensed by the Legal Services Regulatory Authority of Singapore known as Herbert Smith Freehills Kramer Prolegis Alliance, with Singapore law advice provided by Prolegis LLC. The two firms cooperate closely in Singapore to deliver a complementary and seamless legal service.