Background: Spanish Legislation Related to E-Mail Monitoring


Background: Spanish Legislation Related to E-Mail Monitoring

This section does not aim to be a legal analysis of Spanish legislation. Instead, it is a layman s presentation of the main involved principles in order to understand the legal framework that backs the sentences discussed and analysed in Section3. Readers interested in more specific distinctions of the legal Spanish system may look at Villiers (1999). Those fluent in Spanish can also check Davara (2001), Vel zquez (2001), and Climent (2001).

First, we will look at the legal considerations about the right to privacy. The Spanish Constitution clearly defends privacy and the inviolability of communications. Article 18 establishes in disposition 1 the right to honour, personal and familiar privacy and self image. In disposition 3 it clearly states that secret of communication is guaranteed , specially postal, telegraphic and telephonic, unless approved by a judge. Disposition 4 relates specifically to computers and states that the law will limit the use of informatics to guarantee honour, and familiar and personal privacy of citizens , and the full exertion of their own rights.

According to the Criminal Code, it is a crime to violate secrecy of communications. For example, Article 536 is specifically devoted to non-authorised ” by a judge ” wiretapping, including sound, image and any other communication signal (emphasis added). Even public authorities and their agents need to comply , facing inability to work for the public administration from two to six years , and including an extra penalty of six to 18 months if the information illegally obtained is divulged. The same code, under Article 197 establishes the crime of discovery and revelation of secrets related to the behaviour of obtaining documents, letters , e- mails or any other personal effects to discover someone s secrets and his or her privacy.

The Organic Act of Legal Capacities (Ley Org nica del Poder Judicial) in its Article 11.1 specifies that any legal evidence obtained by means of communication interception without a judge s permit is inadmissible.

Protection of communication does not imply only the transmission process, but also the physical object of communication as such. In 1984, the Constitutional Spanish Court (Tribunal Constitucional) ( sentence STC 114/1984), and again in 1996 (STC 34/1996), clearly argues that what is protected in Article 18.3 of the Spanish Constitution is freedom of communication and right to privacy. Therefore, it doesn t really matter whether information has been obtained during the transmission phase or later; merely having access to the object produced during the communication is enough. Secrecy of communication and right of privacy should prevail. This is an interesting departure from the American model, for example, that favours protection mostly to the transmission mode.

These assumptions also apply to the digital realm. Another recent sentence from the Spanish Constitutional Court establishes obiter dictum that article 18.3 does also apply to new cybernetic communications.

Technological advances in the telecommunications realm, specially those related to computers, makes it necessary a new understanding on what communication is, and to extend the object of protection [...] to these new ambits, as it necessarily derives from article 18.3. (Spanish Constitutional Court STC 70/2002)

On the company side towards the right of monitoring, we find several regulations, as well. Article 20.3 of the Workers Status Act (Ley del Estatuto de los Trabajadores) establishes the competence of the employer to control and monitor the activity of the employees and their use of the company instruments and resources. Article 54 of the Workers Status Act, regulation 54.2, describes reasons to discharge from employment as an abuse of trust while at work and clear transgression of contract obligations. Article 18 establishes the possibility of registering personal effects and cabinets where these personal effects are contained as long as these registers are arranged so that they protect the employees rights. Items that the company owns ” for example, the work desk ” can be seized without such guarantees , as established in a Sentence of the Superior Court (Tribunal Superior de Justicia in Castilla la Mancha, 16.09.1999). Nevertheless, these articles are too general and do not include specific references to either computer or communication devices (not even analog ones, such as the company s telephone), so it becomes very difficult to distil jurisprudence from them.

Besides that, an important number of companies ” a number that gets greater and greater ” have their own policy about Internet use, which clearly prohibits the use of e-mail or Web access for personal reasons during office hours. In parallel, installing or executing other applications besides the ones needed to work is usually forbidden, especially if these applications have been received by e-mail and are suspected of carrying computer viruses. Other companies go a little further, not allowing the personal use of corporate e-mail at any time. Finally, a few big companies ” like the Bank La Caixa in January 2003 ” included an internal code which allowed the employer to read the employees e-mails at any time in order to check whether they were working or not.




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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