The issue of privacy protection in the workplace is not new. In effect, the nature of the technological means that are delivered by the company to the workers to carry out their work has always been a controversial issue, especially with regard to the possibility of access by the employer to the emails of the email accounts. corporate in certain circumstances, which recommends having adequate use policies that define these assumptions. And it is that the normalization of the use of technology often generates conflictive situations due to the violation of very personal rights protected by article 18 of the Spanish Constitution and Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy and self-image, which have their specific impact in the labor context, both for workers and employers; in particular for the use of social networks (Twitter, YouTube, TikTok, LinkedIn, Instagram, etc.) and other technologies such as messaging systems (WhatsApp, Line) and apps. For this reason, the Courts have been setting some jurisprudential guidelines applicable both in general and, specifically, in the virtual environment. In this way, with respect to the protection of the right to honor of the company (recognized by jurisprudence for legal persons) , judgment 368/2023, of January 24, 2023, of the Superior Court of Justice of Catalonia (Sala de lo Social) has established that in a strike situation, the freedom of expression of workers prevails over the right to honor of employer, in such a way that comments that in isolation could be considered denigrating, in a context of labor conflict, diminishes their offensive nature, while increasing the degree of tolerance required, especially if the worker is a member of the company committee and affiliated with a union, as was the case in the case under trial, for which reason the dismissal was declared unfair.

The normalization of the use of social networks in the work environment often generates conflictive situations due to the violation of very personal rights

Along the same lines, regarding the freedom of expression of workers in their private sphere outside their work activity, judgment 307/2021, of April 29, 2021, was pronounced by the Superior Court of Justice of Madrid (Sala de lo Social), in relation to the annulment of the dismissal of a COPE worker, motivated by a comment on Twitter, in response to the communication of the complaint filed against Netflix by the Spanish Association of Christian Lawyers, for a film in which view Jesus Christ as homosexual. In this way, since the tweet was made from the worker’s personal account, it was considered as his own opinion that does not affect the image of the company. However, the dismissal was declared admissible in judgment 382/2022, of 20 of April 2022, of the Superior Court of Justice of Madrid (Sala de lo Social) in the case of the worker who posted photographs, videos and memes with the face of the Director of Human Resources (former wife of the owner of the company) and another manager (son of both), relating them to homelessness, alcoholism and drug addiction; considering it a violation of his right to honor, for causing an obvious personal and professional loss of prestige, since the worker, as the person in charge of maintenance of the hairdressers of a franchise, had contact from his personal mobile with the area managers, managers of other centers, suppliers and customers. Likewise, judgment 2044/2022, of October 18, 2022, of the Superior Court of Justice of Asturias (Sala de lo Social) confirmed the origin of the dismissal of a worker who uploaded videos to TikTok in which he appears dressed in his work uniform and calling his company’s clients “sons of bitches”, considering it an excess of freedom of expression in which there is no criticism or opinion, but mere insults uttered repeatedly and gratuitously, which is a violation of the right to honor of customers. And this implies harm to the interests of the company, which is forced to respond in some way to such facts, for which it is empowered to adopt measures in this regard. Regarding the right to privacy of workers , the judgment of May 14, 2021 of the Social Court no. 3 Talavera de la Reina addressed the topic, then hotly topical as we find ourselves in the midst of a pandemic, about whether there is a violation of the worker’s privacy due to the fact that their payrolls state that the cause of their leave was covid-19 . Well, it was considered that the worker’s right to privacy had not been violated, due to the private and personal nature of the payrolls, since they are obtained by downloading them on a platform with their own access codes; in addition to the fact that the payrolls were prepared according to the type of specific leave reports (191-COVID 19) following the instructions given by the INSS. For its part, judgment 5288/2022, of November 23, 2022, of the Superior Court of Justice of Galicia (Sala de lo Social) ruled on the WhatsApp groups created by the company in which workers are included for the organization and coordination of tasks and, specifically, on whether the fact of writing messages in them outside working hours may violate the right to digital disconnection of workers as part of their private space outside of their work activity. The Chamber concludes that this violation does not necessarily have to occur due to the mere fact of receiving messages, provided that their failure to read or reply does not entail sanctions or warnings. Likewise, judgment 458/2022, of January 31, 2022, of the Superior Court of Justice of Galicia (Sala de lo Social) has ruled on the obligation of workers to install a company app on their personal mobile to obtain the necessary verification codes to connect to the computer devices provided by the company to perform their work, under penalty of returning to face-to-face work; establishing that it constitutes a substantial modification of the unjustified working conditions, since, in the same way that it delivered the necessary equipment to telework from their private homes, it could also have provided company mobile phones.By Javier López, partner at Écija