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Can the company check my email?

Labor Law
Can the company check my email?

In recent times, the company has exercised greater control over the workers. Are there limits to this control? Can the company control your email? What does the most recent case law say about the company's control of your email? All of these questions and more will be addressed in this article.

To be able to analyze this question, we must go to the Statute of the Workers, specifically in its article 20.3, where it establishes that "the employer will be able to adopt the measures that he considers more opportune of monitoring and control to verify the fulfillment by the worker of his obligations and labor duties, keeping in its adoption and application the consideration due to his human dignity and taking into account the real capacity of the diminished workers".

What happens if the employer uses his power of surveillance on emails?

Article 18 of the Spanish Constitution recognizes and protects the right to privacy and the secrecy of communications, which can be violated by corporate control, in the event that there is interference in emails by the company.

The Constitutional Court, in Judgment 12/2012 of 30 January, emphasizes that the privacy protected by the Constitution does not only refer to a domestic type of privacy, but also to other areas, especially that related to people's work, in which interpersonal relationships are generated that may constitute manifestations of private life. In other words, Article 18 of the EC protects the personal, family and working privacy of individuals.

Is the use of e-mail protected by the right to privacy?

On the other hand, the use of e-mail by workers in the work place falls within the scope of the protection of the right to privacy.

It is necessary to analyse whether the employee is only allowed to use business e-mail in a professional manner, so that its use for purposes other than the provision of work is subject to a labour infringement punishable by the employer. Therefore, the company's control over the computer tools made available to the workers can be exercised both for the purpose of monitoring compliance with the work carried out with these instruments and to check that their use was not for personal purposes or purposes unrelated to the content of the work relationship.

What if the e-mail is only for work purposes?

The provision of exclusive use in a professional manner means that the employee was warned of the possibility that his or her communications could be monitored by the company, leading to the admission that the employee could know that the employer could control the e-mail and Internet browsing (STC 170/2013, of 7 October).

In other words, the express prohibition of the extra-occupational use of e-mail and its limitation to expressly professional purposes means that the company has the possibility of monitoring its use to verify compliance with the occupational obligations of its employees.

What does the most recent case law say about the company's control of your e-mail?

The Judgment of the European Court of Human Rights in Strasbourg, on 5 September 2017, addresses the limits of company control of the employee's use of the Internet and electronic communications.

The Strasbourg ruling declares that the right to privacy of a Romanian worker, who had been dismissed after being found to be using a messaging system (Yahoo Messenger) for private purposes at work, was violated.

The ruling analyses the conflict between the employer's right to monitor and control employees to ensure the proper functioning of the company and the employee's right to privacy with respect to his emails and other electronic media.

The Court establishes that a "prior notice" is always necessary (before monitoring activities of its mail or other systems are initiated), by the company, in which the employee is duly warned and informed about the possibility of control measures and the scope and nature of such measures.

In addition, the control measure in question (access to the full content of electronic communications) must be justified and it must be verified whether it was not possible to implement, in the specific case, other alternative measures less harmful to the employee's privacy.

Contact us, and our lawyers specializing in labour law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Madrid and Reus.