The Validity of video surveillance evidence in Spain

The use of video surveillance cameras in a workplace by the employer and, especially, the validity of the video surveillance evidence as a means of proof of infringements committed by employees, have been the subject of doctrinal and jurisprudential debate with a view to determine the balance between the rights of workers (such as, for example, the fundamental right to honour and personal privacy recognized in Article 18 of the Constitution or rights to quality and information on personal data collection) and the employer’s management powers.

Requirements of video surveillance

It should be noted that the jurisprudence has determined that the installation and use of video surveillance cameras in a workplace must comply with two main requirements.

Proportionality

The first of the main requirements is proportionality and appropriate use of video surveillance. Thus, the installation and use of these means must be limited to what is absolutely necessary to accomplish a legally protected purpose.

Notification to employees

The second requirement consists of informing the employee about the installation and use of video surveillance cameras. In this respect, the jurisprudence has shed light on cases where it can be considered that the employee has been duly informed, for example, by means of transparent information signs (Sentence of March 3, 2016 issued by the Plenum of the Constitutional Court). However, recent jurisprudence of the Supreme Court (e.g. Sentence No. 4077 of July 12, 2016) determines that, under certain circumstances and after fulfilling specific formal requirements, it is lawful for the employer to supervise his or her employees with cameras without informing the employees that they are being recorded. Among the aforementioned formal requirements, it is also worth mentioning that the registration of the video surveillance system in the General Data Protection Register of the Spanish Data Protection Agency and the communication to the workers’ representative (with a possibility to request the latter not to communicate it to workers) is required.

In addition, it should be noted that the installation and use of video surveillance cameras by the employer in a workplace does not require the consent of the employee, since it is understood that the worker has already provided it when signing the employment contract and, for this reason, the employee accepts and recognizes the employer’s management powers that involve, among others, the possibility of the installation and use of the aforementioned means.

Finally, it must be emphasized that this article only shows a superficial picture of the validity of  video surveillance evidence. It is advisable that the implementation of this kind of system by an employer, in one or more workplaces, is preceded and accompanied by legal advice in order to provide compliance with all the precise requirements that ensure its full validity and effectiveness.

This article is not considered as legal advice

Nicolás Melchior

A Law graduate from the Universidad Carlo III de Madrid, Nicolás Melchior specialises in corporate Law, commercial contracts and electronic commerce. Working languages: Spanish, German, English and French. For any further enquiries please Contact us