Introduction: E-Mail Monitoring Goes to the Spanish Courts

Since 1999, digital monitoring of the workplace has been highly debated in court in Spain. There have been several sentences that have tried to decide whether and under which conditions monitoring workers e-mail is a legal activity. These sentences can be broadly filed under these two general readings :

1. Instrumental reading. Computers, networks, and usually even the e-mail account have been provided by the company. Therefore, they are company instruments, and so the company is allowed to monitor them anytime they want.

2. Communication reading. No matter who owns the instruments, e-mail is an instrument of personal communication; therefore, it is protected by the Spanish Constitution against any monitoring which has not been previously approved by a judge.

In this chapter, I plan to show that, due to the specific nature of the Spanish legislation, reading (1) is not sustainable at all, and the unique interpretation that should prevail is reading (2). Considering that reading (1) is argued by talented judges with enough computer and telecommunications knowledge, the only interpretation left is that we are at the beginning of the fight between two heavily politically loaded metaphors. The final outcome of this fight may determine the future of total informating of the workplace in Spain. The second section will present the legal context in Spain, including Constitution, criminal code, workers code, and doctrinal sentences. The third section will describe and analyse several recent sentences in order to establish the consistency and relevance of readings(1) and (2), arguing that only the second one holds. Special dedication will be devoted to sentence 402/2002, E.G.G. v. Servicios Avanzados de Telecomunicaciones y Telem tica SL that more clearly aims at establishing legislation. Section 4 will briefly present and discuss the political agendas behind this fight among metaphors, establishing the main conclusions.