Your social media profile could be used as an extension of your Curriculum Vitae, but is it ethically and legally allowed for a prospective employer to use your online presence when deciding whether to hire you? University of the Western Cape (UWC) graduate, Abongile Marman, posed this and other questions in his thesis for his Master’s in Mercantile and Labour Law.

UWC graduate Abongile Marman calls for stronger legal protections for job seekers in the digital age. Image supplied.

Marman has researched this evolving conversation around digital privacy, employment law, and discrimination. His research explores how South African law currently falls short in protecting job applicants from being unfairly judged based on their online personas. “Social media is where people show their personality, their interests, their humour. But employers might misinterpret that, especially if they take posts out of context,” he said.

South Africa’s Protection of Personal Information Act (POPIA) regulates the processing of personal data, but Marman’s research showed that it doesn’t specifically address the recruitment process or social media. Marman said: “There’s no clear provision that says employers must get consent before accessing your social media…And there’s no law that forces them to give reasons for rejecting a candidate.” This implies that unemployed applicants wouldn’t even be aware that their social media posts were possibly taken into consideration during the hiring process. The Promotion of Access to Information Act (PAIA) only allows public sector applicants to request reasons for rejection, not private sector job hunters. Therefore, employers have no legal obligation to provide feedback or reasons for rejection, and no clear guidelines on how employers should ethically use social media in hiring.

In his research, Marman looked at the law in Canada and the United Kingdom (UK) and whether there were any lessons South Africa could learn from their best practices. 

“In Canada, even if your social media is public, employers still need your consent to use it. That’s the kind of clarity we need in South Africa.” 

The UK's General Data Protection Regulation and the Data Protection Act (2018) provide strong protections for personal data. Employers must have a legal basis — like consent or legitimate interest —  to process personal data.

Marman recommends that POPIA be amended to include explicit rules for processing social media data during recruitment, and that PAIA be extended to allow private sector applicants to request feedback. He also called for stronger enforcement of anti-discrimination laws, noting that social media content could reveal religious views, political opinions, or lifestyle choices — all of which could be unfairly used against applicants.