The issue of video surveillance in the company for the proper exercise of employer control has traditionally been a matter of controversy in the extensive labour jurisprudence. There is no doubt that the new LO 3/2018, of the 5th of December, on the Protection of Personal Data and guarantees of digital rights (LOPD) and Regulation (EU) 2016/679 of the European Parliament and of the Council, of the 27th of April 2016, regarding the protection of natural persons with regard to the processing of personal data and the free movement of these data and repealing Directive 95/46/EC (GDPR) has heated the matter and returned to open a new gap in terms of the limits of business control when placing video surveillance devices in different parts of the work centres of the companies, and the consequent use of the images captured by them.
The aforementioned regulations regarding data protection represent a shield to the rights to privacy and personal image, which influences and reaches all areas regulated by law, which does not escape the labour nature.
In this sense, both the administrative regulation of data protection, among others Article 5 of the LOPD, as well as labour jurisprudence have contemplated the need for workers to be previously informed in an express, precise and unambiguous way of processing data personal character, and therefore of an eventual recording by cameras or other devices, as well as the purpose of collecting them and the recipients of the information. The limits and the prevalence between the rights of the aforementioned workers and those of business control in the case of labour violations or even criminal actions have been the subject of profuse debate in our doctrine and jurisprudence, the constant duty being to make the worker who is being recorded and the impossibility of placing devices of this class in places of personal space such as toilets or changing rooms. The reality is that to date the employer was greatly conditioned when making use of this evidence for example for judicial purposes in case of dismissal, due to the delicate treatment and consideration of it.
However, there has been an important jurisprudential milestone following the promulgation of the ruling of the Grand Chamber of the European Court of Human Rights (ECHR) dated 17th of October, 2019, “López Ribalda” case.
This resolution failed on the occasion of a case of cars that gathered the founded suspicion of a national supermarket chain of subtraction of quantities, installed hidden camcorders to ensure the accreditation of the facts and where appropriate use the recordings as evidence in court.
The Grand Chamber, as opposed to the majority national jurisprudence, and also modifying its own criteria with respect to the judgment of the 9th of January 2018, issued by the Third Chamber of the same European Court, estimates that despite the fact that the company did not inform the Template of the installation of the hidden cameras, sufficient legitimate reasons have been accredited to resort to this evidentiary possibility as an optimal means to achieve the end, which was none other than to verify that the workers had committed the infraction, without considering the ECHR that has the privacy of the employees has been violated.
Therefore, we can elucidate that the company is entitled to take these control measures without the need for express consent and knowledge on the part of the worker so that if the suspicion is solidly founded and duly justified for the employer, and ultimately for the needs of the company, the right of workers would yield. The argumentation of the resolution bases its failure on the need to also protect the rights of the employer, that is, the control and surveillance and the best interests of an entire group, which would harm not only the employer, but all workers.
For the rest, the Grand Chamber recalls that the duty to inform is fulfilled with the mere placement in the premises of the company of posters or informational signs of the existence of video surveillance elements.
In spite of being early to affirm it with absolute firmness, especially due to the different and wide jurisprudence of the labour courts of more domestic scope, it seems that the path to follow with this new criterion of the ECHR is to make it more flexible, normalize and Ultimately, make use of common sense when defining the circumstances under which video surveillance can be implemented in the workplace, opening the possibility of a new way of defence for the employer, especially useful if you arrive at court in the event of a possible dismissal.
The recommendation, at least until there are no more pronouncements by the Spanish High Court or Superior Courts of Justice in this regard, must analyse each specific case and have adequate legal advice even before the installation of any means of These characteristics, in order to comply with the law and ensure the validity of the evidence in case of possible judicialization.