Instruments vs. Letters: Analysis of Some Recent Spanish Sentences


There is nothing wrong with using metaphors to understand a concept. As a matter of fact, George Lakoff has shown us in several works (Lakoff, 1990; Lakoff & Johnson, 1980) the cognitive relevance of such use. According to Lakoff, our brains , designed by evolution for hunting and recollection tasks , are finely tuned to think about physical objects situated in space. Therefore, more abstract concepts like economy, electricity, or the Web need to be translated into basic metaphors ” the metaphors we live by ” in order to get a proper understanding. It is not strange at all that we upload files to a server and we download them to our computers. Basic spatial metaphors help us to think about the abstract fact of sending data packets throughout a computer network. Then, it is also normal that judges use metaphors of physical objects, such as a desk table or a letter, to understand the abstract process of monitoring communications. Nevertheless, as Lakoff clearly argues, not every metaphor works. Metaphors need to be systematic and consistent in order to translate the abstract level into a more familiar one.

Examining the legal documentation, we have found two types of metaphors that have been systematically applied to the act of monitoring: the instrument metaphor and the letter metaphor. Unfortunately, these two metaphors redirect the discussion towards very different forms of understanding the problem, so they are in fact incompatible. To analyse which metaphor is the more consistent with the subject under inquiry is the main object of this section.

Let us look at the instrument metaphor first. All the sentences that allowed monitoring of the workplace accepted the inviolability of communications, even electronic ones, as stated in article 18.3 of Spanish Constitution. Nevertheless, they appealed to 20.3, 54 and 18 articles from the Workers Status Act to defend the ability of employers to monitor what their workers are doing with e-mail or Web access. Article 20.3 describes the monitoring conduct; article 54 allows discharge , and article 18 establishes a minimal analogy to defend computer monitoring as something really regulated by article 20.3. Among these sentences we can include Catalonia SSTSJ 05.07.2000, Basque Country 31.10.2000, Galicia 04.10.2001, and Madrid 04.12.2001 as the more relevant ones.

Now I will briefly outline the more famous and disputed: G. G. R. v. Deutsche Bank (SSTSJ 05.07.2000).

G.G.R., who worked for the Deutsche Bank since 1971, was discharged from the office on December 2000 ” that is, his employment was terminated ” because of irregularities detected in the use of the bank e-mail. In the following trial, the main evidence for the discharge was a printout of 140 e-mail messages (from October 7-19, 1999) containing mostly obscene and sexist jokes. The trial was held in Barcelona (Juzgado de lo Social Num. 17) and the discharge was ruled illegal. Deutsche Bank appealed (4854/00 Sala de lo Social de Catalunya), and the appeal revoked the former sentence and declared that the discharge was according to the law, without any compensation rights. As a response to that decision, G.G.R. accused the Deutsche Bank of violating article 197 of the criminal code (C ³digo Penal): discovery and revelation of secrets. The claim was accepted by Judge Eugenia Canal Bedia in Barcelona. So far, at the time of this writing, there is no final resolution of this case.

The strategy of Deutsche Bank to justify the discharge was developed mostly along two basic postulates:

  1. It was clearly proven that G. G. R. was wasting his time at the office collecting, reading and sending jokes instead of working.

  2. E-mail is a company resource; therefore, under article 18 of the Ley de Estatuto de los Trabajadores, the employer has a right to monitor e-mail.

The strategy to dismiss the charge for discovery and revelation of secrets followed these three premises:

  1. E-mail is a company resource, so its contents cannot be considered secret.

  2. In order to violate secrecy , the actor must show an active interest in obtaining information. This does not apply to the case, as Deutsche Bank was not really interested in reading the e-mail, but only wanted to establish that this person was not really working.

  3. The order to read e-mail came from the Director of Security of the bank, who received orders from the Work Relations Director. The Work Relations Director stated in court that he got the authorisation from the Chief Executive Officer. The CEO denied this, claiming that this order should have come from the Human Resources Director, but then the Human Resources Director also denied having released the order.

However, although number 3 is mostly aimed at avoiding expanding responsibilities too high in the company, it serves also to present the action as something normal, something that any minor executive can do, and not something that must be ordered from above.

Sentences that did not allow the monitoring were based mostly in the Spanish Constitution (article 18) and argued that every communication system must be protected, even the electronic ones, following decisions from the Constitutional Court already quoted in this essay .

So far, so good. The question is: How is it possible that judges can have such different views about a subject? Could it be due to the technical nature of the Internet? When reading the sentences in detail, it is clear that this explanation does not hold. Judges describe and analyse with knowledge and security more technical questions about such things as cookies or computer viruses, so a fortiori they must be savvy in the use of simpler technologies like e-mail. It is also worth noticing that e-mail is a common instrument of communication nowadays in the Spanish administration, including, of course, the courts. The real reason, as we plan to show in more detailed analysis of a specific sentence, is a political interest to allow digital monitoring of the workplace, and arguments, acts, and sentences are conveniently distorted in order to justify something that really does not fit into the Spanish legal framework.

Expanding arguments arranged in Althusser (1967), one could say that there is a spontaneous philosophy of judges which points at the inviolability of communications, and a manifest one, which plays along with Taylorism and informatism, in order to justify digital monitoring. As Althusser points out, every philosophical problem has an epistemological background and a political background, as well. It is quite easy to forget the epistemological implications in order to defend a political agenda, even if it is at odds with basic freedoms and liberties. In order to show this conflict between the spontaneous philosophy and the manifest one, I will analyse in some detail an outcome against the monitoring of digital communications. Despite the fact that the final outcome was to declare the discharge of the worker illegal, the argument is quite twisted sometimes, and it is easy to identify the conflict between the two philosophies in the mind of the judge.

E.G.G. worked for the company Servicios Avanzados de Telecomunicaciones y Telem tica S. L. (Advanced Services in Telecommunications and Telematics) from September 1998. In April 2000, she changed her category from administration to commerce. At the beginning of 2002, she started to accuse the company of mobbing. Strangely enough, the English word mobbing has entered in the Spanish legal language meaning aggressive , intimidating, or vexacious action from an employer towards an employee, with the final intention of making the employee leave the company. Keep in mind this peculiar use of the term while reading this chapter. Some weeks later, she was discharged from employment ” disciplinary discharge ” accused of:

  1. Use of the company e-mail for personal purposes

  2. Introduction of two computer viruses in the company computer

  3. Use of the Internet during office hours to follow an online English course

E.G. G. went to court. The judge ruled against the mobbing, but accepted that the discharge was unfair and condemned the company to pay E.G.G. the total amount of 7.766 Euros. Servicios Avanzados de Telecomunicaciones y Telem tica appealed, but again the judge considered that the discharge was against the law. During the two trials, Servicios Avanzados de Telecomunicaciones y Telem tica presented a technical report undertaken by an external company, which produced descriptions of the contents of literally thousands of personal e- mails , cookies of non-work- related Web pages, and the presence of two computer viruses. Documentation also included screen captures of several e-mails from E. G.G. Arguments were based on article 54.2 from the estatuto de los trabajadores and a company memo that clearly prohibited the personal use of e-mail or the World Wide Web during work hours.

Let us analyse first the judge s declaration of the absence of mobbing. In the sentence it described this degrading situation: E.G.G s boss declared several times that she wore inadequate dresses. Then an executive from another company that was close to Servicios Avanzados de Telecomunicaciones y Telem tica is asked to sign a document stating that E. G. G. was wearing an inadequate dress. The executive considered the petition senseless and didn t sign it. Even more relevant to our study is the fact that E.G.G. s position in the office was changed, and her computer monitor was reoriented in order that her boss could have her controlled all the times. This was a quite clear case of mobbing, which the judge dismissed by appealing to technicalities. We cannot discuss the mobbing case here, as it is outside the framework of this study, but I found it illuminating that, to our judge, situating a person in a degrading panopticon-like situation (Foucault, 1977) is not a clear case of mobbing.

The first thing we need to keep in mind is that the judge is clearly trying to establish jurisprudence. He knows that this sentence is very relevant, so he is not merely trying to decide whether the E. G. G. discharge was fair, but is trying to bring a general principle on monitoring digital communications. This is another reason to consider this sentence meaningful to our study.

First of all, the judge ruled out the accusation of introducing viruses. Due to the fact that Servicios Avanzados de Telecomunicaciones y Telem tica is a computer services company, it is clear that they should have installed updated antivirus software in all the computers, so this could not be considered E.G.G. s fault. When discussing e-mail, he accepts that several messages (he quotes the ones numbered 129 and 136) are indeed personal, subject therefore to privacy rights and protected by article 18 of the Spanish Constitution. Next, the judge points to the fact that, according to article 11.1 of the Ley Org nica del Poder Judicial (already discussed in section 2), the report from the external company is irrelevant, because e-mail and navigation data were obtained from E. G. G. s computer without a court order. The judge even quotes the Malone sentence (European Court of Human Rights 2-08-1984), which ruled out comptage, a system which registers the telephone number a person is calling, considering it against privacy rights, clearly established in the European Declaration of Human Rights.

So far, so good. The judge has enough elements to rule out the discharge as unrighteous. But then, he makes a strange twist in the sentence plot. He quotes Romagnoli and the view that law is basically common sense to find agreement between the employer interests and the basic rights of the employee. It is almost impossible not to ask oneself what type of common sense implies that human rights must be neglected in order to favour a company interest. But the judge thinks he needs to do it, so he looks for a more lateral way to declare the discharge not according to law. Because Spanish legislation has no clear precedents , the judge refers to articles 6 and 7 from the European Directive 95/46, which accepts digital monitoring if (a) there is a specific, legitimate , and explicit need for the monitoring, (b) the monitoring is conducted based on a risk pattern, and (c) the effects on the worker s privacy is reduced to a minimum. Based on these very circumstantial criteria, the judge considered that the company interference was disproportionate when E.G.G. s privacy is considered. No extraordinary circumstance allowed the monitoring.

From now on, a sentence that aimed at establishing jurisprudence moves to a very pragmatic and contextual discussion. We learn that E.G.G s computer was the only one inspected. E.G.G. was indeed following an online English course, but that had happened a year before, and she didn t have privileges to access this online course anymore. Several other people know E.G.G. s password to access the computer, so it cannot be completely proven that she was the one that visited the Web pages.

It is particularly illuminating that the argument related to the last point. The judge claimed that it is not sufficient to present computer data that shows that E.G.G. s computer was visiting Web pages unrelated to work during working hours. One needs to prove that E.G.G. was on the computer at that moment, as well. Besides that, the judge claims, E.G.G. s situation in the office was changed in order to help the boss to monitor her constantly. Therefore, her boss would have seen her watching the forbidden Web pages. Implicitly, the judge is approving visual monitoring of a worker.




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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