Spain: The Review Of e-Mails By Companies: About The Supreme Court Ruling On February 8th 2018

Analysis of the February 8th 2018 Supreme Court ruling

Following the judgment of the European Court of Human Rights (Grand Chamber) of 5 September 2017 (Barbulescu II v. Romania), legal operators were waiting for the Supreme Court to rule on the possible legality of the employer's access to the corporate e-mails of its employees and, therefore, on the feasibility of using them as evidence to substantiate disciplinary business decisions.

Well, to a certain extent, the question has been cleared up. The Social Chamber of the Supreme Court in its ruling of 8 February 2018 (Inditex case; RCUD 1121/2015) states that the doctrine of the European Court does not add anything substantial to the traditional jurisprudential doctrine of the Supreme Court or to that developed by the Constitutional Court.

The background of the case being prosecuted was:

1.- Within the company, there were specific corporate 'information systems' and an 'information security policy' regulation for the group, which limited the use of the company's computers to strict work purposes and therefore prohibited their use for personal matters.

2.- Each time the employees accessed the company's computer systems from their own computer, and prior to such access, they had to accept the guidelines established in the group's information security policy, which stated that access was for strictly professional purposes, and the company reserved the right to adopt the necessary monitoring and control measures to verify the correct use of the tools it made available to its employees, The complainant was therefore aware that he could not use the mail for any particular purpose and that the company could monitor compliance with the guidelines in the use of the information technology provided by it.

3.- The examination of the computer used by the actioning employee was agreed following the "accidental discovery" of two photocopies of  bank transfers made by a supplier of the company in favour to the plaintiff for a total amount of €50,000 (one direct for €11,000 and the other for €39,000 from a car dealership), which were used to purchase a Mercedes X6. This fact is expressly prohibited in the company's code of conduct and imputed in the dismissal letter.

4.- From 2008 to 2013, the supplier invoiced the company 32,899,913 dollars. Of this total amount, $15,734,080 was invoiced for purchases made from that supplier by the claimant. From 2011 to 2013, the supplier invoiced the Group 6,379,733 dollars, of which 2,370,188 dollars were invoiced for orders made by the worker.

5.- The contents of certain e-mails in the plaintiff's corporate e-mail account were examined, but not in a generic and indiscriminate manner, but rather attempting to find elements that would allow the selection of which e-mails to examine, using keywords that could be used to infer in which e-mails there might be information relevant to the investigation and taking into account the proximity of the date of the bank transfers.

a.- What is the jurisprudential doctrine that our Supreme Court has established behind the Europeaan Courth of Human Rights judgement in the Barbulescu case?

The High Court underlines that the doctrine of the European Court of Human Rights, when attributing legitimacy to the activity of control over workers' e-mails, highlights as decisive five factors to be taken into account: a) the degree of interference by the employer; b) the existence of legitimate business reasons justifying the monitoring; c) the absence or existence of less intrusive means to achieve the same objective; d) the destination given by the company to the result of the control and, e) the provision of guarantees for the worker.

The Supreme Court then ruled that the factors to be taken into account in the compulsory balancing of interests are basically the three successive "suitability", "necessity" and "proportionality" judgments required by the Constitutional Court and the Supreme Court's own jurisprudence.

The Supreme Court considers that these factors were scrupulously respected, and therefore the company's appeal for the unification of the doctrine is deemed to have been accepted, attributing full procedural validity to the evidence derived from the examination of the e-mail address on the employee's computer.

b.- What aspects have been specially taken into consideration by the Supreme Court to validate the examination of the content of certain e-mails?

First, that the "accidental" discovery of photocopies of bank transfers made by a company supplier in favour of a worker excludes the application of the Anglo-Saxon doctrine of the "fruit of the poisoned tree", under which the judge is barred from assessing not only the evidence obtained in violation of a fundamental right, but also that resulting from it.

Secondly, the fact that the company had a policy on the use of computer resources which limited the use of those resources, including, in particular, electronic mail, for exclusively professional purposes. Furthermore, the internal rules clearly stated that the company could monitor or supervise the use of such means by employees. The worker was aware of these rules and accepted them on a daily basis when accessing his assigned computer.

Thirdly, the review of the e-mails was not carried out in a generic or indiscriminate manner, but rather in an attempt to find elements that would allow the selection of the e-mails to be examined, using keywords that would make it possible to infer in which e-mails there might be information relevant to the investigation.

In this way, the examination was limited to those mails relevant to the investigation, available in the employee's corporate mail, through access to the server hosted on the company's own premises, i.e. no particular device or device of the employee was ever accessed.

c.- Are there other aspects of interest in Supreme Court ruling?

We would highlight three:

1º.- That the use of the computer in the company, although personalised, falls within the scope of the employer's supervisory powers and, therefore, the exercise of the corresponding powers of control is covered by Article 20 of the Worker's Statute and does not have the limitations that correspond to the function of "private police" that Article 18 of the Worker's Statute allows, which is an exceptional regime referring to the private sphere of the worker (ticket office and personal effects), so that although the presence of third parties (notary, employee's legal representative, other worker and the person concerned) may be convenient, its absence does not, however, in any way condition the validity of the control act.

2º.- The company's interest or assessment to appeal to the Supreme Court, since although the High Court of Galicia confirmed the origin of the disciplinary dismissal sitting in the High Court chamber nº 1 in A Coruña, it was based on the illegality of the control of the actor's emails and could not be denied that: a) the extent of the supervisory powers of the company was at stake; b) the specific evidence of the breach alleged in the dismissal letter; and c) the possible demand for liability of any kind for the company's actions, which the Territorial Court's ruling described as infringing the fundamental rights of workers.

3º.- The delay in the appeal, which, as in so many other appeals for the unification of doctrine, takes too long to be resolved, as several legal operators have already stressed with great concern. The High Court judgement combated in Galicia was issued on December 30, 2014 and the High Court judgement is from February 8, 2018.

In conclusion, the Supreme Court in this peculiar case, in which both the worker (Chamber of the High Court nº 1 A Coruña 14-4-14 and STSJ Galicia 30-12-14 confirmed the origin of the dismissal) and the company appealed, revokes the nullity affecting the evidence obtained by the employer through the control of its e-mails, set out in the judgment of the Territorial Court, and attributes full procedural validity to the evidence derived from the partial examination of the e-mails existing in the worker's computer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions