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").
Prior to the act's entry into force, the Supreme Court and the Constitutional Court had already issued regulations on how employers could monitor employees using video, audio or geolocation surveillance. These regulations (as in the case of the legal framework concerning digital devices (for further details please see "New digital rights: employees' right to privacy in use of digital devices at work") were in line with the European Court of Human Rights rulings in this regard.
The key principal of the courts' regulations was that employers had to clearly inform their employees about video, noise or geolocation surveillance systems prior to their implementation.
The new Data Protection Act has made no special amendments to the courts regulations. However, has provided a concrete legal framework in this regard.
The new Data Protection Act establishes that employers can process images obtained through video cameras in order to monitor employees (including public servants). However, they must do so in accordance with the law, particularly as it concerns data protection.
Further, employers must expressly inform employees about such measures before their implementation and must do so in a clear and concise manner. Where a workforce has employee representatives, they must also be informed in the same way as employees.
An exception to the manner in which information must be provided applies where video cameras capture an employee (or public servant) committing a blatant offence. In such cases, it is sufficient to publish in a visible location an informative poster which sets out:
- the existence of the data processing;
- the identity of the data controller; and
- the possibility for employees to exercise their rights to access, rectify, limit the processing of and delete their data (under the terms set out in the Data Protection Act).
Further, the new act prohibits the installation of video surveillance systems in places intended for the rest or recreation of employees (or public servants), such as dressing rooms, toilets or canteens.
Audio surveillance in the workplace (via systems which are similar to those used to record video) will be accepted only when the risks relating to the security of facilities, goods or people are significant considering the activities performed in said workplace. These audio recording systems must consider the principles of proportionality and minimum intervention, as well as the guarantees set out for video surveillance.
Employers can process data obtained through geolocation systems in order to monitor employees. However, they must do so in accordance with the law, particularly as it concerns data protection.
Before implementing a geolocation system, employers must expressly inform employees of such action in a clear and unambiguous way. Where a workforce has employee representatives, they must also be informed about the system's existence and characteristics. Further, employees must be informed of their rights to access, rectify, limit the processing of and delete their data.
The Data Protection Act's entry into force has made some changes to the Workers' Statute. In particular, new articles have been added recognising employees' right to:
- to privacy in the use of digital devices at work;
- disconnect; and
- privacy in the use of video, audio and geolocation surveillance.
Further, the new act states that collective bargaining agreements can establish additional guarantees in relation to these new digital rights.
Despite these changes, it will be necessary to await court rulings on this subject in order to find out the specific application and scope of these new rights.
For further information on this topic please contact César Navarro at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.
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