f you are an entrepreneur, you must have been tempted to monitor the email of your employees when you believe that they are using the business means for tasks far from professional purposes; and, if you are a worker, I’m sure that you are wondering: Can the owner of the company monitor the content of my e-mails?
In this complex case, several rights collide: (a) the right of the employer to adopt the measures that he deems most appropriate for monitoring and to verify the fulfillment of the worker’s obligations and duties (Art 20.3 of the ET), power that emanates from articles 33 and 38 of the Spanish Constitution, which enshrine the rights to private property and to entrepreneurial freedom respectively; and (b) the rights of workers inherent to the citizen condition, specifically the right to privacy (Article 18.1 CE) and the right to secrecy of communication (Article 18.3 CE).
Spain lacks clear legislation on this matter and the jurisprudence of the Courts is essential to be able to offer a precise answer to this question that you as a businessman or worker have wondered on several times.
The European Court of Human Rights recently issued, on September 5th , 2017, a ruling in which it considers that Article 8 of the European Convention of Human Rights was violated, in the dismissal of a worker considering that the domestic courts had not verified if the employer had previously notified the plaintiff the possibility that his communications in Yahoo Messenger were going to be monitored and of whether he had been informed of the nature and scope of the surveillance to which he was going to be subjected as well as of the level of intrusion in his private life and mail that this would imply. Furthermore, the ECHR considers that the specific reasons for the introduction of the monitoring measures are not justified and considers that it was not assessed whether it was possible to use other less intrusive measures than access to the content of the communications without his knowledge. The Court considers that there is a lack of balance between the interests of the employer and the plaintiff’s right to respect for his private life.
It is particularly relevant, although the Company had previously warned the workers that the use of the materials that the Company make available to workers were only and exclusively for professional purposes and its use for personal purposes could have negative consequences for the employees, that the ECHR affirms that in this case there was no prior notice. It considers that the workers were simply informed about an employee who had been fired for the private use he made of the internet and other means of the Company and this information had been transferred to the rest of the employees.
- Both the European Court of Human Rights and the Constitutional Court stand up for the balance and proportionality between (a) the right of the worker to respect their privacy, and (b) the right of the employer to take measures to guarantee the good functioning of the company.
- The employer can use the appropriate and necessary means to monitor without forgetting that it is necessary to justify why it was decided to introduce that measure, considering the possibility of using other surveillance measures less intrusive for the worker and that the disciplinary and organizational power of the employer should never harm the rights of the worker on his condition of citizen.
- Any type of surveillance over the means of communication provided to the worker by the company must be informed prior to the beginning of the monitoring.
SCHILLER Abogados offers advice to implement a business control system and fulfill the requirements of law and jurisprudence -social and constitutional-. Likewise, we can review the control mechanisms of the company and propose corrective measures or / and updating to the new Spanish and European legal situation.