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28 February 2018
The Supreme Court recently stated that an employer that installs a camera in its workplace to monitor an employee's activity can be found guilty of a crime under Article 171 of Decree-Law 196/03 (the Privacy Code), even if the camera was installed to protect goods and property (Sentence 4564/2018).
Article 4 of Law 300/1970 provides a specific procedure to authorise an employer to install monitoring devices. The use of such devices is allowed only if justified by organisational, production or safety requirements and following specific agreements with trade unions.
According to the Supreme Court's prevailing jurisprudence, the authorisation requirements should not be considered applicable to cases in which monitoring devices were installed to protect and defend corporate goods and property. This viewpoint was based on concerns regarding the fact that the absence of authorisation could guarantee preferential treatment to workers in the case of criminal or illegitimate conduct.
However, even in these circumstances, the use of cameras or other devices which enable employers to monitor employees must be considered unlawful if it can harm the privacy or dignity of employees.
In this context, the Supreme Court found the employer guilty under Article 171 of Decree-Law 196/03, as a camera had been placed inside an air conditioner of the office in which an employee worked alone in order to identify the person responsible for the theft of documents a few days earlier.
The Supreme Court stated that the use of the camera had harmed the employee's privacy and dignity, who at that time had often had to lower her trousers to apply cream to an injured knee. The court considered that the employee's dignity and privacy were more worthy of protection than the economic value of corporate goods and property.
The court also found that the reforms in this regard introduced by the Jobs Act were inapplicable in this case, as said law had entered into force at a later date and disavowed the Supreme Court's previous verdict by introducing an authorisation procedure to install cameras or other control devices not only if justified by organisational, production or safety needs (already provided for in Article 4 of Law 300/1970), but also to protect corporate goods and property, as established by the revised Article 4.
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