Video surveillance measures in the framework of management control

Business control is a function that allows companies to evaluate the actions undertaken and the results obtained by their employees. The arrival of new technologies has allowed for an improvement in the resources available to companies in completing such evaluations, but it also has resulted in a change in the assessment of the fundamental rights of workers.

In order to affect integration between both parties, i.e. the companies and workers, the courts must assess the validity of the methods used in the exercise of corporate control.

Article 5 of the Organic Law on Data Protection (OLDP) requires the employer or manager, before implementing any control measure, to previously inform the interested party in an express, precise and clear way. For its part, Article 6 of the aforementioned legal text requires the consent of the affected party, unless the law states otherwise. In any case, the consent is implicit in the acceptance of the employment contract itself, which implies the recognition of the employer’s management power. Employers find in this exemption an opening for the exercising of their control powers both within the scope of compliance and the obligations that arise from the employment contract.

This scenario, apart from being theoretical, has led to different actions on the part of the employer, such as the capturing of images through video surveillance techniques. But the evolution and the scope of these types of techniques have led to the emergence of new conflicts as far as the treatment of the image is concerned.

The Doctrine, which until now has been established in the Constitutional Court of Spain and determining the powers of control and supervision of the employer’s work (Article 20.3 of the ET), is now altered by the new decision issued by the European Court of Human Rights on January 9, 2018, Case of López Ribalda and others against Spain.

In the ruling (186/2000 of July 10), the Constitutional Court, despite assessing the employee’s right to privacy, does not grant it explicitly and instead considers this fundamental right to privacy in the context of other constitutionally-recognised rights. These, among others, include the right to the freedom of enterprise, provided that this right has legitimate grounds. In this ruling, the management power of the employer, as stipulated in Article 20.3 of the E. T., is recognised as a measure of controlling and supervising one’s employees in order to verify compliance. The basis for this ruling is to evaluate the legality of the measures taken by the employer in the exercise of its powers of control and supervision, examining them under the strict principle of proportionality.

This decision marks a turning point in terms of corporate control in general and, in particular, the use of video surveillance.

This article is not considered as legal advice

Karl H. Lincke

Lawyer and Rechtsanwalt, Karl H. Lincke specialises in mergers and acquisitions, company law, TMT law and real estate law. Working languages: Spanish, German and English. For any query Contact Karl H. Lincke