06. Social Media and Data Privacy in Spain

Restrictions in the Workplace

In Spain, the new culture resulting from the development, implementation and use of new possibilities such as social media and other technologies enabling mass dissemination of information, is changing the way people relate to each other in all fields. The working environment is no exception. Massive amounts of personal information are available to anyone wishing to use it, and companies are obviously not indifferent to this valuable source of content, nor can they escape from this fast and ever-changing technological innovation that allows people to communicate and share extremely detailed data at a much faster rate. The vast majority of regulations applicable to the multimedia content in Spain are driven by the European Union Council and European Parliament. This European legislation is complimented by the Courts of Social Justice Case law. These elements have provided a set of principles and guidelines making analogies between on-line and off-line worlds. Still, the widespread use of social media and the speed at which it evolves, has clearly overtaken any attempt to keep pace using the legal resources currently available to private users and companies in most countries, and this is particularly true in Spain.

In spite of the need, Spain still lacks specific regulation on the subject of using social media in the employment context. Due to lack of well-defined regulatory legislation, it has been up to the courts to solve conflicts between employer and employees regarding their rights and duties for use of social media in connection with employment.

There is no express legal prohibition for employee not to use social media at the workplace. Such a prohibition can be regulated by the employer by written form, with a detailed policy on surveillance and control of the company’s property and the use of social media tools during working hours. Although there is no need to seek approval with the employees’ representatives to implement or negotiate such policies, some companies choose to negotiate directly with these representative bodies, before communicating such policies to the individual employees.

Therefore, if the employer considers the particular use of multimedia contents by its employees detrimental to the company’s activities, the employer may within its responsibilities, issue the appropriate guidelines and instructions to regulate the use of these tools and seek greater productive capacity from the employees, and even prohibit the use of social media at the workplace.

Thus, the measures used by the employer will be assessed according to the principle of proportionality meaning the measures to control the employee at the workplace have to be justified, appropriate, necessary and balanced. According to a general formulation, the principle of proportionality may be applied to conflicts between fundamental rights. This is based on three types of test: first, if the application of the measure is able to achieve the objective (judgment of suitability); second, if it is necessary and there is no other measure which is less aggressive (judgment of strict necessity); third, if it is balanced and obtains more advantages than disadvantages for the general interest (judgment of strict proportionality).

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

Spanish law recognises the employer’s right to take the most appropriate measures to control the work of their employees, so as long as they do not violate their fundamental rights. Case law of the European Court of Human Rights and Spanish Courts have established that when the electronic communication systems used by employees are owned by the company, and therefore susceptible to being considered as work instruments and tools, they may be subject to the employer’s control. However, for the monitoring of the electronic communications to be valid, the employer must comply with the following:

• establish guidelines on the use of these media, and inform the employees that the use of such devices is limited to professional tasks; and
• warn or notify employees, in advance, of the possibility to control and monitor their electronic devices and the possibility to penalise them for improper use.

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

Without clear policies, it can be difficult to lawfully sanction employees for misuse of social media. The High Court of Justice of Madrid accepted offensive statements posted on Facebook by an employee as evidence towards the appropriateness of the employer’s disciplinary action. The High Court found the dismissal of the employee to be fair, because of the company’s code of conduct, which explicitly permitted disciplinary measures for offensive or defamatory remarks made by employees against the company.

It is important to have a social media policy implemented by the employer and communicated to the employees, in order to control the use of company resources and tools. Also, some courts in first instance consider it necessary to include in such a policy, that it may be used for disciplinary reasons against the employee. The company will be entitled to enforce the policy and sanction the employee whenever breached.

It is advisable to provide such a policy to the employees at the beginning of their employment relationship; firstly, by defining how social media may or may not be used for private use during working hours; secondly, identifying what non-confidential company information can or cannot be posted by employees on social media sites, if any. This can be included in the employee’s work contract.