Your Subscription

We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.





Login
Twitter LinkedIn




Login
  • Home
  • About
  • Updates
  • Awards
  • Contact
  • Directory
  • OnDemand
  • Partners
  • Testimonials
Forward Share Print
CMS Albiñana & Suárez de Lezo

New digital rights: employees' right to privacy in use of digital devices at work

Newsletters

16 January 2019

Employment & Immigration Spain

Existing legal framework
Data Protection Act
Comment


The new Data Protection Act entered into force on 6 December 2018, introducing a number of so-called 'digital rights' (for further details please see "New Data Protection Act introduces digital rights for employees and "New digital rights: employees' right to disconnect").

Notably, the Spanish legal system already provided a framework regarding the use of digital devices at work and how employers can exercise control over them in view of employees' right to privacy.

Existing legal framework

Although there were no legal provisions on this issue, the Supreme Court had ruled on the matter by adapting the provisions referenced in the notable European Court of Human Rights judgment in Barbulescu v Romania (5 September 2017).

In its judgment of 8 February 2018, the Supreme Court provided a general overview of the use of digital devices at work (eg, email or mobile phones) and how employers can exercise control over them while also guaranteeing their employees' right to privacy.

Thus, in order to monitor employees without violating their privacy, employers must consider the following questions:

  • Does the employee have an expectation of privacy? (If the employer prohibits the use of work devices for personal purposes, there will be no expectation of privacy.)
  • Has the employee been informed of the possibility that their employer may monitor their devices and the scope of this monitoring? The information in this sense must be clear and circulated in advance.
  • How will the employer exercise control over its digital devices? Will the dissemination of communications be controlled or rather the content of such communications? Will control be exercised over all communications or only some?
  • Are there legitimate arguments to justify the employer exercising control over digital devices?
  • Could a system based on less intrusive measures be established instead?
  • Will the employer use the results of the device monitoring properly and will they accomplish the goal of exercising such control?
  • Has the employer offered the employee adequate guarantees regarding the monitoring (specifically, has it notified the employee in advance)?

Data Protection Act

The Data Protection Act provides a new legal framework in relation to employees' right to privacy in the use of digital devices at work, although no great changes have been made to the existing legal framework.

The act recognises the right of employees and public servants to privacy in the use of digital devices provided by their employer.

Further, it limits employers' control of such monitoring to:

  • ensuring that employees comply with their employment obligations (or statutory obligations in the case of public servants); and
  • guaranteeing the physical integrity of the digital devices.

As regards information to be provided to employees, the act states that employers must establish criteria for the use of digital devices which comply with the minimum standards of privacy protection in accordance with social customs and legal and constitutional rights. Employee representatives should be involved in establishing such criteria.

In addition to providing criteria for the use of digital devices, every time that employers authorise the private use of devices, they must specifically determine the authorised use and guarantees in order to preserve their employees' privacy (eg, the periods in which the devices can be used for private purposes). Employees must be informed of all such criteria for the use of devices.

Comment

Although the new Data Protection Act has introduced no significant changes regarding the use of digital devices at work, employees' right to privacy regarding such use has now been set out in law.

For further information on this topic please contact César Navarro at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.

The materials contained on this website are for general information purposes only and are subject to the disclaimer.

ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.

Forward Share Print

Author

César Navarro

César Navarro

Register now for your free newsletter

View recent newsletter

More from this firm

  • New regulations aim to guarantee gender equality
  • Q&A on new remote working regulations
  • Employment-related measures to fight effects of COVID-19: regulatory update following lifting of state of emergency
  • Extraordinary employment-related measures in fight against COVID-19: regulatory update
  • Extraordinary employment-related measures introduced in fight against COVID-19

More articles

  • Home
  • About
  • Updates
  • Awards
  • Contact
  • My account
  • Directory
  • OnDemand
  • Partners
  • Testimonials
  • Follow on Twitter
  • Follow on LinkedIn
  • Disclaimer
  • Privacy policy
  • GDPR Compliance
  • Terms
  • Cookie policy
Online Media Partners
Inter-Pacific Bar Association (IPBA) International Bar Association (IBA) European Company Lawyers Association (ECLA) Association of Corporate Counsel (ACC) American Bar Association Section of International Law (ABA)

© 1997-2021 Law Business Research

You need to be logged in to make a comment. Log in here.
Many thanks. Your comment has been sent.

Your details



Your comment or question *