Spain: Access to workers’ mail can imply fundamental rights violation

An executive was dismissed after his company’s suspicion that he was leading unfaithful conduct because of his participation in companies with the same activity. With this suspicion the company made a copy to analyse his computer’s contents. Through the information taken out from his electronic mail the unfaithful behaviour of the employee was proven and this originated a complaint against him. The Vizcaya Provincial Court sentenced the employee, as an author of continuous misappropriation, to five years prison and payment of 5 million euro for civil responsibility.

The ex-manager appealed in cassation before the Supreme Court, alleging that the company’s action had violated the fundamental right to privacy, communications confidentiality and personal data protection (Const art 18.1,2 y 4).

The employee alleged that he didn’t have any acknowledgement of his obligation to use the computer exclusively for business activities; that he wasn’t either warned about the company’s faculty to check his computer; and that he didn’t authorise to access his mail. For these reasons, he was requesting the nullity of his computer examination and all the proofs derived from it. The company alleged that the computer examination was carried out by an expert with an electronic tool which selected, through a range of code words, just information about the labour contents and not about the private one.

The Supreme Court estimated the employee’s appeal, based in the European Court of Human Rights pronouncement in the matter Barbulescu (TEDH 5/9/2017, EDJ 169399), according to which the interest of the employer to prevent unfaithful or illicit employees conduct will prevail if the following requests are fulfilled:

1. The employee gives his consent to enter the data storage device.
2. The employee has been previously advised of those faculties.
3. The employee has been previously informed that the use of that tool is limited to professional tasks.

If those requirements are not fulfilled there will be violation from the company. In case of being fulfilled another deliberation, approach will be considered, in relation with:

1. The necessity and utility of the measure.
2. The non-existence of other less invasive ways.
3. The existence of well-founded suspicion.

The Supreme Court sustains its decision based on the fact that “illegitimacy doesn’t derive from the obtained contents but from the non-consented and not previously advised access.”

The Supreme Court annuls the judgement and re-sends the cause again to the Court so that, on the basis that the examination of the computer violated fundamental rights, and it should be determined which proofs are NOT affected by this and if they can support a pronouncement of guilt. Following the doctrine of the fruit from the poisoned tree written down in article 11.1 of the Spanish Organic Law 6/1985, of the Judiciary “In all kind of procedures rules of good faith must be respected. Proofs obtained, directly or indirectly, by violating the fundamental rights or freedoms don’t take effect.”