Constitutional Court ruling opens way for firms to spy on work emails
Sacked employee who revealed sensitive data sees appeal rejected
Justices consider that workplace rules on use of account trump right to
privacy
EL PAÍS
The Supreme Court on Wednesday
denied an appeal by an employee of a company in the chemicals sector who was
dismissed on the basis of the firm's suspicion that competition-based sensitive
information had been sent from a work email account.
The appeal lodged by the
worker, identified only as Alberto, cited Article 18 of the Constitution, which
governs secrecy of communications and the right to privacy. But the land's
highest legal authority ruled unanimously that in this case the labor
regulations of the sector must be taken into account. Among these is the
sanctionable offense of "the utilization of communications systems
belonging to the company for ends that differ from those laid out in the
content of the contractual agreement."
The company's decision to
examine the employee's work email account was therefore "justified,
fitting, necessary, prudent and balanced," the ruling read, supporting the
decision on the basis that the company "suspected" irregular behavior
on the part of the employee, whose cellphone was also confiscated. However, as
the sector's employment regulations make no mention of the use of mobile
phones, the court rejected the evidence on the basis of a breach of right to
privacy.
The Constitutional Court ruling thereby legitimizes in Spain the control of
"information technology tools belonging to the company and used by
employees [...] as well as means to monitor compliance with the contractual
agreement through the professional use of these instruments, such as
supervising that they are not intended for personal ends or that are contrary
to the contractual agreement."
Previously, a company that
wished to access its employees' email accounts was obliged to send a circular
warning of the action in advance. "With this ruling, the Constitutional
Court has set aside existing doctrine and used collective labor agreements as
the sole warning to workers about the possibility of this control being
enforced," said labor law professor Esther Carrizosa.
In 2009 the Finnish parliament
approved a controversial law authorizing private companies and public
institutions to monitor their employees' work email accounts to combat the
leaking of industrial secrets. The legislation became known as the "Nokia
Law" due to the pressure placed on lawmakers by the cellphone giant after
it was the subject of several alleged acts of industrial espionage.
According to the
Constitutional Court ruling, there was no violation of communications privacy
legislation in this case because the limitation of the use of a business email
account for professional means "implicitly implies the authority of the
company to control its use with the aim of ensuring an employee's compliance
with his or her labor obligations."
The court also took into consideration whether the company's actions were
disproportionate, but ruled that they were justified due to suspicions of
wrongdoing on the part of the employee.
The company's decision was
justified in order to "confirm that the employee indeed committed the
suspected infraction: the passing of limited access business data to a third
party."
The ruling also stated the actions were "necessary" to justify
the dismissal in the event that a subsequent legal appeal was launched and
"prudent and balanced" as there was no infringement of the
appellant's right to privacy as none of the communications contained
"specific aspects of personal or family life of the employee, but purely
information relevant to the business activities of the company, the passing of
which to third parties implies a breach of contractual good faith."