The Law on Hidden Video Surveillance of Workers Outside the EU

By Ius Laboris June 9, 2020
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​A 2019 decision out of the European Court of Human Rights (ECHR), Lopez Ribalda v. Spain, is bringing the issue of hidden video surveillance of workers into the spotlight. In that decision, the court held that surveillance of workers using hidden video cameras can be valid if there is reasonable suspicion that a crime or serious misconduct has been committed, causing significant harm to the employer.

Ribalda has changed the use of covert video surveillance in western Europe, as well as in eastern and northern Europe. Below, we examine how the Ribalda ruling interacts with the laws on hidden surveillance in eight jurisdictions outside the European Union (EU): Argentina, Brazil, Hong Kong, Kazakhstan, Mexico, New Zealand, Peru and Russia.

Argentina

In Argentina, using video cameras to monitor employees is allowed if the surveillance is not discriminatory or an invasion of employees' privacy. If the employer decides to install video cameras in the workplace, the Ministry of Labor must be notified.

Intrusive monitoring that violates employees' dignity, such as cameras installed in bathrooms or dressing rooms, or any other system targeting selected employees without reasons, is prohibited.

Labor tribunals do not accept video recordings in legal proceedings if they are intrusive. Nonetheless, if cameras are visible, the relevant notification was made to the Ministry of Labor, and surveillance is required for security reasons or because of the organization's special activity, the film can be used, provided employees' dignity is not affected. Film records will normally be accepted if they are certified by a notary public who determines the date and place of the recording, the equipment used and the integrity of the video.

Brazil

Closed-circuit television (CCTV) monitoring generally is permitted in Brazil if there is a visible notice informing individuals that such monitoring is in operation. An organization does not need to have pre-existing security issues to use it. But monitoring specific employees and areas of social interaction, such as cafeterias and lounges, as well as toilets and dressing rooms, is forbidden.

Hong Kong

In Hong Kong, the privacy guidelines Monitoring and Personal Data Privacy at Work and Guidance on CCTV Surveillance and Use of Drones, issued by the privacy commissioner for personal data, basically endorse the principles in the Ribalda decision.

Before installing and using any CCTV surveillance on the workforce, an employer must assess whether it is appropriate, necessary and proportionate in the circumstances. In addition, the employer must consider whether there are less-intrusive, alternative means for monitoring.

Kazakhstan

Video monitoring in the workplace without employees' consent violates citizens' constitutional right to personal privacy in Kazakhstan. Several Kazakh regulations, such as the constitution and civil code, refer to this. Moreover, in accordance with the Law on Personal Data and Its Protection, the image is data. Collecting and processing personal data without an employee's consent may entail administrative and criminal liability.

Mexico

In general, video surveillance is permitted in the workplace in Mexico if it complies with the Mexican Constitution, and with labor and data protection laws, particularly with the generally accepted principles of legality, consent, information, data quality, purpose specification, loyalty, proportionality and accountability. Also, some states in Mexico have specific laws regulating video surveillance in certain workplaces.

New Zealand

If the Ribalda case had been decided in New Zealand, the outcome would have been similar, and the employer likely would have been found to have acted lawfully. Under New Zealand law, covertly recording video footage of employees in the workplace if there is a reasonable suspicion of wrongdoing is lawful.

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Peru

The Peruvian Authority for the Protection of Personal Data (APDP) has issued the Advisory Opinion No. 049-2018-JUS/DGTAIPD, which states the following:

  • The employer is empowered to carry out controls and monitor its employees' activities by using video surveillance systems.
  • Processing of personal data in these cases does not require prior consent, but the duty of information must be fulfilled.
  • Monitoring employees through video surveillance systems should be used only when there is no more suitable measure available for labor monitoring.

Russia

Video surveillance in the workplace must comply with Russian labor and data protection laws, as well as the basic principles outlined in the Russian Constitution.

Russian law prohibits covert video surveillance, except for the limited cases specified directly by the law, such as for investigative activities. Employees must be notified regarding video surveillance. The company's internal policy must explain the purpose of monitoring and its implications for employees, legal grounds for monitoring, the employees' and the employer's rights and obligations, and personal-data processing conditions and implications.

Ius Laboris is a leading international employment law practice combining prominent employment, labor and pension firms. Contributing member firms to this article include Verónica Eva Puerta Basaldúa, an attorney with Funes de Rioja & Asociados in Buenos Aires; José Carlos Wahle, an attorney with Veirano Advogados in Sao Paolo; Kenneth Leung, an attorney with Lewis Silkin in Hong Kong; Yuliya Chumachenko, an attorney with AEQUITAS Law Firm in Almaty, Kazakhstan; Adolfo Athié and Erika Rodríguez, attorneys with Basham, Ringe y Correa in Mexico City; Peter Kiely, an attorney with Kiely Thompson Caisley in Auckland, New Zealand; Carol Elisa Quiroz Santaya, an attorney with Estudio Olaechea in Lima, Peru; Anastasia Petrova, an attorney with ALRUD Law Firm in Moscow; and José Miguel Mestre Vázquez, an attorney with Sagardoy Abogados in Barcelona, Spain.

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