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06. Social Media and Data Privacy in Mexico

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Mexico

06. Social Media and Data Privacy in Mexico

Restrictions in the Workplace

In Mexico, there is no comprehensive legislation on social media; however, the Data Privacy Law and its secondary regulations, among other laws, apply to the processing of personal data that is carried out within social media platforms (including job advertisements), as well as to the processing of personal data that is obtained from social media. Processing is understood as the collection, use, disclosure or storage of personal data by any means. All processing of personal data must observe the principles of legality, consent, information, data quality, purpose specification, loyalty, proportionality and accountability.

Despite major reform in 2012, the FLL does not specifically address access to or use of the Internet and social media. According to the FLL, the employer has the obligation to provide employees with the work tools necessary for the performance of their duties. The FLL further states that the employee may not use work tools for anything other than their intended use. Electronic equipment and devices such as computers, mobile phones, and laptops are similarly provided to the employee during employment to assist the employee in the performance of his duties and responsibilities in the workplace. Considering the obligations established in the FLL and in the Data Privacy Law and its regulations, the employer has the right to ensure that the employee is using the work tools in accordance with the intended work purpose and, therefore, to forbid the employee’s access to social media, using these devices and equipment for non-work-related purposes.

Can the employer monitor, access, review the employee’s electronic communications?

According to the FLL, employees should be committed to perform their jobs with the utmost diligence and efficiency, as well as to safeguard those working tools provided by the employer to ease the accomplishment of their duties, which are not intended for personal use. Thus, employees may have access to social media if the employer so allows, either during their work shift or out of it. Breach of the foregoing may lead to justified termination of employment. Depending on the nature of the job, access to social media may be necessary. The employer may have access to the employees’ communications by these means with supervision purposes and only if agreed in writing with the employees. According to the most recent opinions issued by the Supreme Court of Justice, the right to privacy of private communications includes social media.

Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information

Employees have a duty of loyalty towards the employer, which means that employees must refrain from carrying out actions that may harm company’s reputation, other employees, or the company in general. The contrary may give grounds for termination with cause. Employers can, at their sole discretion, stipulate their requirements for employment. One such requirement could be the execution of a confidentiality agreement in addition to the employment agreement. The confidentiality agreement could include an obligation not to use, reveal, publish or in any other way disclose the industrial secrets and confidential information of the employer to its past, present, or potential clients.

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