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In its judgment dated February 8, 2018 (Inditex case), the Spanish Supreme Court applies, for the first time, the doctrine of the European Court of Human Rights (“ECHR”) in its judgment of September 5, 2017 (Barbelscu II)-which we discussed in a previous blog post (see here)-regarding employer monitoring of emails. The Supreme Court reminds us that to validate such monitoring, all the interests at stake must be considered (the employee’s private life and correspondence, and the employer’s right to manage) and it re-examines the requirements established by the EHCR in its judgment, summarizing as follows:

  1. Degree of intrusion into the employee’s privacy.
  2. Whether the employer has provided legitimate reasons to justify the monitoring.
  3. Existence of less intrusive methods.
  4. Use made by the employer of the results of the monitoring operation.
  5. The provision to the employee of adequate safeguards.

 

Our Supreme Court concludes that the mentioned requirements lead us to the three-part principle of proportionality required by our Constitutional Court of suitability, necessity and proportionality and, therefore, that the requirements do not imply a huge change in relation to the chamber’s traditional doctrine.

In this case, it validates the employer’s monitoring of employee corporate emails, as the three-part principle of proportionality is met, given that: (i) the company has a use policy for its IT tools that prohibits their use for personal means; (ii) every day the employees log on to their computers, they must agree to the guidelines in that policy and they are reminded of the company’s right to adopt measures to monitor and control the correct use of the IT tools; (iii) the company acted after the “accidental finding” by another employee in a company photocopying machine of documents that proved the breach of labor rules by another employee; (iv) the employer accessed the emails through a server, not directly using the employee’s computer; and (v) the checking of the emails was carried out using a search for key words and dates relating to the content of the documents found in the photocopying machine.

We highlight that the company’s action in this case was particularly careful, enabling the Supreme Court to validate the email access based on the chamber’s classic doctrine, as well as to declare that the company’s behavior “easily passes the filter established by the EHCR’s requirements for attributing legitimacy to monitoring activity.”

Therefore, although the requirements established by the EHCR lead back to the analysis of the three-part principle of proportionality, we understand that our internal courts will do this more rigorously and thoroughly than ever.

In short, having an appropriate internal policy is key for court validation of company behavior; therefore, we recommend reviewing whether the company’s current rules meet the requirements established by both national and European courts.

 

This post is also available in: esEspañol

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almudena.jimenez@cuatrecasas.com

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