The Provincial Court of Madrid has considered that an employer can freely access the communications by email that a worker has maintained with the computer provided by the company, without prior notice and without the knowledge of the employee, and even if the employer has not prohibited the personal use of the computer and there is no policy of control of the computers. In an order he estimates that the interests of the company prevail. The worker sent, as discussed in another lawsuit, e-mails with confidential company information to compete unfairly with it.
The company had not previously established any rules for the use of work tools, such as the computer and the email account, and had not informed the worker that controls would occur.
The magistrate rapporteur, Carlos Ollero, is based on the fact that "with the computer the provision of work is executed and, consequently, the employer can verify in it its correct operation". In this way, it exempts the employer and several commanders from the commission of the crime typified in article 197 of the Criminal Code, for violating the fundamental rights to the secrecy of communications and privacy.
Unlike the locker and its personal effects, whose privacy is protected by the Workers' Statute, the order understands that "the computer is a production instrument owned by the employer and the employer therefore has powers of control of the use, which includes its examination".
The company claimed that the alleged violation of the worker's privacy did not occur in an arbitrary or capricious manner, but was carried out for the subsequent evidentiary support in an action for unfair competition. The employee was sending confidential company information to an email address with the alleged purpose of competing with it in the future. The company used the information obtained through the emails to sue the worker, a lawsuit that was filed.
However, other cases thrive. A Criminal Court has sentenced to three years in prison and a fine of 6,000 euros to an engineer who stole confidential information from his company to use it in a competing company, according to EXPANSIÓN on January 7.
The worker who denounces the conflict judged by the Audiencia de Madrid filed a criminal complaint in 2007 against the employer and several executives of the company Alma Technologies for violating the fundamental rights to the secrecy of communications and privacy, having accessed the emails he had sent for six months from his private home, while he was opening a new office of the company in Mexico, "alone and isolated in a foreign country of high risk and high danger, with more than 6 hours of time difference with Spain, and without having provided him with a work permit, so he was in a situation of illegality, punishable by imprisonment in that country", as he wielded.
In addition, the employee alleged that the company breached the employment contract while abroad, by failing to pay him a large part of the salary and not paying a large part of the Social Security contributions. The worker said that all these circumstances "facilitated and forced" him to personally use the laptop and the email account, in order to maintain personal communications for their safety and survival, without supposing any cost or damage to the company.
For its part, the company explained that it accessed multiple emails from the worker because he needed to find a file saved on his computer. And the employee proved that the company had accessed without prior notice and without his knowledge at least 18 e-mails, and showed that none had anything to do with the alleged file.
The Doctrine of the Supreme
The Social Chamber of the Supreme Court determines that the employer's access to a worker's computer can be neither arbitrary nor disproportionate. The employer must have indications or well-founded suspicions of inappropriate conduct. And it cannot have the possibility to do so in a less intrusive way. Experts recommend that companies agree or inform their employees of their "policies for the use of computer media" and their "privacy policies", and warn of control activities in which, sometimes, it is recommended that a legal representative of the workers be present.
Source: Expansión
