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06. Social Media and Data Privacy in Peru
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06. Social Media and Data Privacy in Peru

Restrictions in the Workplace

In the first place, we must indicate that there is no specific labour regulation about the individual.

The Personal Data Protection Law (No. 29733) establishes that “the communications, telecommunications, computer systems or their instruments when they are of a private nature or private use, only can be open seized, intercepted or intervened by reasoned order of the judge or with the authorisation of its holder”.

Article 9 of the Labour Productivity and Competitiveness Law allows the employer to sanction the worker for any breach of his labour obligations or other causes, within the limits of reasonableness.

Then, article 25 literals a) and c) of the same normative body considers as just causes for dismissal the breach by the worker of his work obligations in breach of good labour faith, non-compliance with the internal work regulations and improper use of goods or services employer’s own. So, in internal regulations, the employer can establish guidelines for proper use of the Internet.

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

Although there is no labour regulation in this regard, pursuant to our Courts the employer can access said telephone records, as long as it is explicitly stated in internal regulations accepted by the worker or written agreements with the worker, that the phones to which he has access as communication tools work must be used for strictly labour and occasional purposes and reasonably for personal purposes.

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

The freedom of expression, which the worker exercises through social networks, this supposes the power that he has to communicate in a public or private place, in his home, work, his ideas or opinions. The employee is entitled to exercise this freedom through social networks. However, the indicated right is not absolute, so exercising it cannot affect the honourability, image or good reputation of a third party. In this case to the company.

On the other hand, the right to privacy, also recognised in our Constitution, and whose ownership is undoubtedly held by the worker, is based on the desire that the owner’s information not be disclosed, however, we consider that when said information is published for a number of people to see, the effect of said right would be lost.

In this sense, we can conclude that by making “posts” on a social network (public), these would no longer be protected by the right to privacy and could be subject to disciplinary sanctions by the employer.

Any questions

Ask our member firm Estudio Muñiz in Peru