Spain: New Rights for Digital Times Created

By Raquel Flórez © Freshfields Bruckhaus Deringer LLP December 7, 2018

​A new Spanish data protection law provides digital rights to employees and employers, including workers' right to disconnect any digital devices, companies' entitlement to monitor the use of devices provided to employees and certain company rights to process recordings obtained from cameras.

Right to Disconnect

Employees both in the private and public sector shall be entitled to disconnect any digital devices in order to ensure, outside of the applicable working time, respect for their resting periods, holidays, and personal and family privacy. The aim is to prevent employees from suffering "computer fatigue."

Companies will have to put in place a policy for the responsible use of devices to ensure this right to disconnect in those cases where employees work totally or partially outside of the workplace, namely when they do so from home by means of digital devices.

Monitoring of Employees' Devices

Companies will be entitled to monitor the use of devices provided to employees for work purposes, with the only aims of ensuring compliance with the employment obligations and guaranteeing integrity of the devices.

The following requirements must be met (the law is in fact assuming the principles already set out by case law):

  • A company must have specific policies on the use of digital devices, and must inform the employees of the scope and limits of use.
  • These policies must provide clear information on the scope of employee's privacy. In any case, they will not prevent minimum expectations of privacy in accordance with usual practice and those rights acknowledged by law.
  • In order to be entitled to access the content of digital devices where the company has allowed private use, it will be necessary for the relevant policies to include specific provision of the use admitted and provide as well how the employee's privacy will be guaranteed. Employees must be directly informed of the existence and content of these policies.

Video or Audio Recording of Employees

The law also provides that a company may process recordings obtained from cameras (photos or videos). It will also be possible to use geolocators provided this is used to monitor employees' performance within the limits set out by law. No cameras might be installed in resting areas, toilets or changing rooms. In addition, employees must be informed of the existence and location of those recording devices, and the consequences that the relevant recordings may have for them.

Right to Be Forgotten

The law also provides for the right to be forgotten, so that users could demand that their personal data be erased in certain circumstances.

Raquel Flórez is an attorney with Freshfields Bruckhaus Deringer LLP in Madrid. © 2018 Freshfields Bruckhaus Deringer LLP. All rights reserved. Reposted with permission of Lexology.



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