The monitoring of employee communications in Spain
Communications in general
In the case of Copland v. the United Kingdom on 3 April 2007, the European Court of Human Rights found that the notion of “private life” and “communication” within the meaning of Article 8.1 of the European Convention on Human Rights equally applies to e-mails sent from work as it does to telephone calls made from a business premises. The European judges ruled that an employee has a legitimate founded belief in the privacy of his or her calls, messages and e-mails when the employee has no knowledge of the employer’s access to the employee’s communications and the employer did not warn of the risk of monitoring.
Spanish judges, executing strict application of Copland v. the United Kingdom, rely on the good faith of the employee and on his or her reasonable and legitimate expectation as to the privacy of his or her communications.
Therefore, the Sentence of the Supreme Court, Social Chamber on 26 September 2007, based on Article 20.3 of the Worker’s Statute (which provides employers the power to monitor and control) and the requirement of good faith governing labour relations, declares that in order for employer’s monitoring of the employee to be lawful, the following two conditions must be met:
- The company must make the rules on personal communication maintained by employees available to the employees in advance
- The employer must inform the employees of the possibility of control.
One can see the application of this case law in the Sentence of the Supreme Court, Social Chamber made on 7 December 2011. The judges state that there was an absolute prohibition for the employees to use the computers made available to them by their employer for the purposes of personal communication. This absolute prohibition is lawful and the employees could not expect any confidentiality regarding their personal correspondence maintained on these devices. Moreover, the employer also informed the employees about the possibility of control on these computers. Therefore, the employer was entitled to access e-mails sent or received by its employees on those computers.
Communication by text message
Under Spanish law, the issue of an employer controlling messages sent and received by an employee on his or her business mobile phone is all the more relevant because French judges have recently ruled on this issue.
In a judgement dated 10 February 2015, the French Supreme Court established the principle that all messages sent and received from a business mobile phone is presumed to have a professional nature. This presumption has led the High Court (1) to authorize employers to search messages sent or received by an employee on the phone at his or her disposal, without the employee’s knowledge and (2) to allow such messages as lawful evidence during a trial.
Under Spanish case law, there is no express answer to this issue. Nevertheless, we can find a constructive response in the Sentence of the Constitutional Court from 7 October 2013, approving the Sentence rendered by the High Court of Justice of Madrid of 27 April 2010 that discarded at trial the evidence of a text message transmission by the employee. While the company had proportioned both the computer and the mobile phone, only the e-mails sent or received from this tool are included in the collective agreement governing the sector in question. Since a regulation regarding correspondence via text message from a professional mobile phone was not in either the convention or the internal regulations of the company, the employee was legitimately entitled to believe in the confidentiality of his communication by text message.
Conversely, it can be argued that if the employer had prohibited or limited the use of professional mobile phones for personal communication or, at least, had warned the employees of the possibility of control of said communication, then the employer would have been able to see the content of the messages in question and use it as evidence during trial. In this case, the messages would be a legitimate form of evidence in favour of the employer, as in the judgement of the Commercial Chamber of 10 February 2015.
Inés Ducom & Nicolás Melchior