Privacy of the communications in the workplace. Around european criteria

 Versión en castellano aquí

The recent judgment of the Constitutional Court dated October 7th denied the protection of a dismissed employee who had sent data considered confidential by email to a competing company production.

One of the most important criteria in Spanish Law,  to be considered in the orbit of the European Union law is the expectation of privacy.  If the company makes clear its intention to monitor communications in the workplace no employee is allowed to claim such confidentiality.

The judgment extends the doctrine that had previously sat the Supreme Court, allowing access to the contents of the email addresses of employees who are within the information system of the companies to ascertain any labor violations, understanding that may be sufficient the existing provision in a collective agreement.

When we want to apply the rules of the confidentiality of the communications in the workplace previously we need  to take into account:

1. – The secret of communications protects the communication process, not  the contents  (They has to be protected by privacy law). The object of protection are the communications, whatever contents they have,  in order we can made them freely

2. – There is no secret of communications to  the parties of the communication. Secret means not just the content but also other aspects,  as the identity of the parties  or even telephone call lists,  or incoming and outgoing calls recorded on a cell phone

3 – Communications has to be made through a closed channel. Any communication whose content has to be declared or when it is authorized to be opened, or subjet of any control to determine its nature,  is excluded of the right to the privacy of communications.

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