Constitutional Court ruling opens way for firms to spy on work emails

The Supreme Court on Wednesday denied an appeal by an employee of a company in the chemicals sector who was dismissed on the basis of the firm's suspicion that competition-based sensitive information had been sent from a work email account.

The appeal lodged by the worker, identified only as Alberto, cited Article 18 of the Constitution, which governs secrecy of communications and the right to privacy. But the land's highest legal authority ruled unanimously that in this case the labor regulations of the sector must be taken into account. Among these is the sanctionable offense of "the utilization of communications systems belonging to the company for ends that differ from those laid out in the content of the contractual agreement."

The company's decision to examine the employee's work email account was therefore "justified, fitting, necessary, prudent and balanced," the ruling read, supporting the decision on the basis that the company "suspected" irregular behavior on the part of the employee, whose cellphone was also confiscated. However, as the sector's employment regulations make no mention of the use of mobile phones, the court rejected the evidence on the basis of a breach of right to privacy.

The ruling legitimizes the control of "information technology tools belonging to the company"

The Constitutional Court ruling thereby legitimizes in Spain the control of "information technology tools belonging to the company and used by employees [...] as well as means to monitor compliance with the contractual agreement through the professional use of these instruments, such as supervising that they are not intended for personal ends or that are contrary to the contractual agreement."

Previously, a company that wished to access its employees' email accounts was obliged to send a circular warning of the action in advance. "With this ruling, the Constitutional Court has set aside existing doctrine and used collective labor agreements as the sole warning to workers about the possibility of this control being enforced," said labor law professor Esther Carrizosa.

In 2009 the Finnish parliament approved a controversial law authorizing private companies and public institutions to monitor their employees' work email accounts to combat the leaking of industrial secrets. The legislation became known as the "Nokia Law" due to the pressure placed on lawmakers by the cellphone giant after it was the subject of several alleged acts of industrial espionage.

According to the Constitutional Court ruling, there was no violation of communications privacy legislation in this case because the limitation of the use of a business email account for professional means "implicitly implies the authority of the company to control its use with the aim of ensuring an employee's compliance with his or her labor obligations."

Finland's "Nokia Law" allows companies to monitor employees' email accounts

The court also took into consideration whether the company's actions were disproportionate, but ruled that they were justified due to suspicions of wrongdoing on the part of the employee.

The company's decision was justified in order to "confirm that the employee indeed committed the suspected infraction: the passing of limited access business data to a third party."

The ruling also stated the actions were "necessary" to justify the dismissal in the event that a subsequent legal appeal was launched and "prudent and balanced" as there was no infringement of the appellant's right to privacy as none of the communications contained "specific aspects of personal or family life of the employee, but purely information relevant to the business activities of the company, the passing of which to third parties implies a breach of contractual good faith."