Post by account_disabled on Feb 20, 2024 0:32:17 GMT -5
Control (monitoring) must be subjected to the proportionality test . In this sense, it is necessary to examine whether the company has previously provided a legitimate reason that justified the surveillance of communications and the control of their content, taking into account that the control of the content of communications requires a more substantiated justification. In this sense, it is necessary to gauge whether it would have been possible to use a less invasive control system than directly accessing the content of the communications.
Regarding the surveillance of the content of communications (email, corporate computer...), the ECtHR has distinguished between Fax Lists the control of the flow of communications and that of their content, so that access to the latter must be justified as necessary, suitable and proportional. , that is, it can be carried out on all or only part of them, for a limited time, also establishing a limited number of people who can have access to its results.
In the event that the “Barbulescu Test” is passed, monitoring is legal, and proof of this are these four sentences handed down by Spanish courts.
Supreme Court ruling, dated February 8, 2018
In the ruling of the Supreme Court, of February 8, 2018, full procedural validity is attributed to the evidence derived from the examination of the email existing on the worker's computer (lawful monitoring), since the requirements established by the ECtHR have been met ( Barbulescu test.
The Supreme Court “remembers” in this ruling the criteria established by the ECtHR. These criteria, as questions that a company must be able to answer before sanctioning (leading to dismissal) an employee, are these:
Background information: Has the employee been informed of the possibility that the company may take measures to monitor his or her correspondence and other communications, as well as the implementation of such measures?
Scope of monitoring : What was the extent of monitoring carried out by the company and the degree of intrusion into the employee's private life? In this sense, among other issues, it is necessary to analyze whether the supervision of communications has been carried out on all or only a part of them and whether or not it has been limited in time and the number of people who have had access to their information. results.
Regarding the surveillance of the content of communications (email, corporate computer...), the ECtHR has distinguished between Fax Lists the control of the flow of communications and that of their content, so that access to the latter must be justified as necessary, suitable and proportional. , that is, it can be carried out on all or only part of them, for a limited time, also establishing a limited number of people who can have access to its results.
In the event that the “Barbulescu Test” is passed, monitoring is legal, and proof of this are these four sentences handed down by Spanish courts.
Supreme Court ruling, dated February 8, 2018
In the ruling of the Supreme Court, of February 8, 2018, full procedural validity is attributed to the evidence derived from the examination of the email existing on the worker's computer (lawful monitoring), since the requirements established by the ECtHR have been met ( Barbulescu test.
The Supreme Court “remembers” in this ruling the criteria established by the ECtHR. These criteria, as questions that a company must be able to answer before sanctioning (leading to dismissal) an employee, are these:
Background information: Has the employee been informed of the possibility that the company may take measures to monitor his or her correspondence and other communications, as well as the implementation of such measures?
Scope of monitoring : What was the extent of monitoring carried out by the company and the degree of intrusion into the employee's private life? In this sense, among other issues, it is necessary to analyze whether the supervision of communications has been carried out on all or only a part of them and whether or not it has been limited in time and the number of people who have had access to their information. results.