Legal limitations on the use of computer media in Spain

Everything, it seems, should have its limits (Quinto Horacio Flaco).

Logical and legislated limitations on the use of the company's computer media. "Possible codes of conduct"

"…… finally clarified points on which up to now there were different points of view: The computer is a medium owned by the company. It is subject to the supervisory power of the employer. It is not possible to equate it to a personal environment….. "

In Spain and after the Supreme Court ruling dated September 26, 2007 on business control of electronic mail, the vision of some points regarding the use of the company's computer media has changed, and although the Constitutional Court is expected to end ruling on this issue, for the moment it has not.

We believe that with regard to the use of computer media within the company, we have to start from the basis that both workers and employers have rights, and due to this conflict situations occur, in which according to sentences of the Constitutional Court there is no superiority of any of the rights over others.

The rights of workers would be the following:

Right to privacy Right to secrecy in communications Right to freedom of expression Right to equality and non-discrimination.

The rights of the employer would be:

Right to private property Right to freedom of business.

The use of computer media in the business environment has stimulated and caused changes in work habits, and "abuse" (sometimes) by employees may have brought negative consequences, such as: loss of hours of work, computer security problems (viruses), and legal problems mainly due to downloads of music, movies, personal data on the network.

The limits to the power of corporate control would be mainly: the violation of fundamental rights of workers and the criterion of proportionality. (The benefits and damages for the general interest of the application of the measure must be assessed).

The Supreme Court Judgment of 09/26/07 has established and clarified points on which up to now there were different points of view:

The computer is a medium owned by the company

It is subject to the surveillance power of the employer

It is not possible to equate it to a personal medium so it does not enjoy the guarantees of article 18 (for example lockers)

The criteria to be followed for the registration and control of the company's computer media, always of course respecting the dignity of the worker, are the following:

Prior establishment of the rules of use. Inform of the control measures of the tools and the forms of verification. Establish the specific prohibitions regarding their use.

For abusive behavior in the use of computer media to be punished with sanctions and even dismissal, in the sentences existing to date, the dominant note is that the cumulative notes of gravity must be given (with respect to the transgression of good faith, that is, it must be a habitual or repeated manifest abuse) and guilt (the will of the worker when carrying out the act, for example, receiving messages would not have the same consideration as sending them).

To avoid future conflict situations in this area, a possible solution is the establishment of a “CODE OF CONDUCT” that should be known to all the parties involved, and which could even be reached by negotiating part of its content with the workers' representatives, which should contain the following points:

Content

Document objective

Establishment that the computer equipment is property of the company and is a working tool.