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April 10, 2015
The following question: “Can my boss monitor my email?” has been one of the most repeated questions in recent times, being a question for which there is no definite answer. The incorporation of ICT (information and communication technology) into our daily lives has made employers see the need to adapt the use of computers, email accounts and telephones at a personal and professional level. However it seems that none of this has been incorporated into labor standards.
In this sense, workers are protected by the fundamental right to privacy and secrecy of communications. However, within an employment relationship such rights are not absolute, because the employer also has the right to protect their business assets and control the efficient performance of the employee during working hours and verify that the means or tools that are delivered to workers are used for professional purposes.
Given the abovementioned scenario, we must consider the following question: “Does the employer violate the fundamental rights of workers if he or she monitors employee´s email, computer and telephone?”
Truth be told, nothing is regulated by the Law, which makes us turn to judicial pronouncements in order to find the answer. In this regard, the Supreme Court (Sala de lo Social) in its judgment of the 26th of September 2007 understood that “even if the worker is entitled to respect for their privacy, such respect of privacy cannot be imposed when the worker uses any means of media provided by the company against instructions issued by the latter to ensure continuity of service.”
In the previous paragraph, we find the key to this matter is for the employer to set the rules in this regard and communicate them to the workers. That is, it is essential to have a code of use of IT tools in which the employer determines whether the personal use of ICT by his or her workers is or isn´t allowed. This should be communicated to employees and be always available to them.
Therefore, if there is a code of use and it is communicated to the workers, the expectation of confidentiality will disappear and the monitoring of workers’ emails would be permitted, without resulting in the breach of confidentiality of privacy of communications. This means that, should company resources be used for private purposes, contravening Company rules and with full knowledge of the controls in place, such control cannot be considered an infringement of a “reasonable expectation of privacy” in the terms established by the European Court of Human Rights.
Ultimately, the determining condition that would give the employer the right to legally “monitor” employees´ mail is whether he or she had previously informed the workers of this and if such monitoring is within appropriate use.
If you find yourself in a similar situation and you are not sure if your employer has violated your privacy, please contact us and we will be happy to resolve any doubts. Our first consultation is free.