Constitutional Analysis: Update of the legality requirements of labor video surveillance systems

Video surveillance as a labor control measure has led to numerous controversies arising from the frequent conflict between the exercise of the employer's power of surveillance and control, included in our legislation in art. 20.3 of the Workers' Statute, and the content of substantive rights. to privacy (art. 18.1 CE) and to the protection of personal data (art. 18.4 CE), not always exempt from different interpretations in the specific case.

Between the years 2013 and 2019, in the regulatory context of the already repealed LOPD of 1999, the Constitutional Court ruled on two occasions on the impact of the duty of information to workers in the adoption of these measures, reaching divergent conclusions without consensus. defined. In essence:

• STC 29/2013 maintains that this duty is an essential part of the fundamental right of art. 18.4 CE and that it cannot be replaced in any case by generic information addressed to the general public about the existence of the surveillance system.
• STC 39/2016 maintains that there is a duty of information to workers but that it is not specific and can be fulfilled with generic information addressed to the public.

Later, the European Court of Human Rights issued two rulings of extraordinary relevance:

• ECHR of September 5, 2017 (Barbulescu v. case Romania): In which the criteria for weighing proportionality in the adoption of this type of labor control measures were established.

• ECHR of October 17, 2019 (case of López Ribalda and others v. Spain): where it was considered that the duty of information, even though it is a relevant element in the protection of the right to data protection, may be omitted in certain circumstances.

In this jurisprudential context, stated very succinctly, the concept of “reasonable expectation of privacy” is configured as a central element in the assessment of the proportionality of labor control measures. In practice, as a result of these rulings, those responsible for the treatment (that is, employers) have been carrying out the so-called “Barbulescu Test”, as a guarantee of compliance with proportionality in the implementation of labor control measures.

With the entry into force of the current Organic Law 3/2018, of December 5, on the protection of personal data and guarantee of digital rights (LOPDGDD), interpretations of compliance with the duty of information in matters of video surveillance were apparently limited. the work environment, since the specific duty of the employer is established to inform in advance, and in an express, clear and concise manner, the workers and, where appropriate, their representatives, about the existence of a video surveillance system. for the purposes of controlling compliance with labor obligations. With the exception that generic information on the existence of videographic control is sufficient to guarantee the legality of the treatment when the flagrant commission of an illegal act has been captured (art.89.1 of the LOPDGDD).

However, the Constitutional Court in its recent Judgment of September 29, 2022, has issued a statement of special importance that gives article 89.1 of the LOPDGDD a more complex meaning than what emerges from its literal wording.

STC of September 29, 2022

As perfectly summarized in the ruling, the issue raised in the appeal for protection that is the subject of the ruling “is about the invocation of the right to use the relevant means of proof for the defense (art. 24.2 CE), raised by an employer whose decision "The dismissal of a worker due to facts that had been proven by the images obtained by a company video surveillance system was declared judicially inadmissible considering that it was evidence obtained irregularly."

The significance of the pronouncement is intentional, since the admission to processing of the amparo appeal, although conflictive due to lack of consensus among the members of the court (as can be seen in the dissenting vote), was agreed upon as it was considered an opportunity to clarify or change the doctrine. constitutional, when assessing the repercussion that the entry into force of the LOPDGDD may have, and especially its arts. 22 and 89, on the images captured by a security camera installed in a company for use in the context of a disciplinary dismissal.

Constitutional Update

In the ruling, the Constitutional Court updates its doctrine by systematically developing, and in response to previous constitutional and European doctrine, different considerations on the requirements that video surveillance systems must meet, of which we want to highlight the following:

1. In general, the adoption of any measure is subject to the principle of proactive responsibility, which requires the adoption of appropriate measures to guarantee and prove compliance with the regulations.

• To assess whether the placement and use of a video surveillance system in a company for labor control purposes can affect the right to privacy of workers, it is necessary to carry out a weighing judgment, in accordance with the triple canon that, based on the existence of a legitimate purpose, assess the suitability, necessity and proportionality of the measure (Barbulescu Test).

• The mere verification of a legitimate purpose does not exclude due consideration of a possible impact on the right to privacy.

• The location of the cameras must respect the privacy of places intended for rest or recreation, or that have a reserved nature.

• The installation and use of a video surveillance system will not require the consent of the workers because it is understood implicitly by the mere contractual relationship, but it does require a duty to inform them in advance and expressly about its existence and purpose. This duty is an unavoidable guarantee of the aforementioned fundamental right.

• Failure to comply with the duty of information would essentially affect the right to protection of personal data, not privacy.

• As an exception, the use of the images captured to verify or prove the flagrant commission of an illegal act will not require the prior duty of information, which may be understood to have been fulfilled when a badge informing the existence of the system, its responsible, its purpose and the rights derived from the processing of the data.

• The basis for this exception is that “it would not make sense that the installation of a security system in the company could be useful to verify the commission of infractions by third parties and, however, it could not be used for the detection and sanction of illegal conduct committed within the company itself. If any person is aware that the video surveillance system can be used against them, any worker must be aware of the same.”

These considerations reaffirm the deep-rooted doctrine of the Constitutional Court in this type of matters and accept and interpret the exceptional case contemplated in art.89.1 of the new LOPDGDD. 

A new interpretation

In addition to the previous considerations, in the specific case, The court qualifies as valid the use of the recordings captured by the video surveillance system as evidence in the labor procedure. Considers that the fact that the cameras had been used for the same disciplinary purpose in 2014, even without having proceeded to regularize the information poster including the purpose of labor control, and therefore maintaining information intended for the general public, cannot be valued at the detriment of the company. The court understands that this fact reveals that the worker, who had been in the company since 2007, knew and was aware of the existence of the cameras and their possible use for disciplinary work purposes. That is to say, there was no “reasonable expectation of privacy”.

The court qualifies “with this, we do not want to exclude the company's responsibility for failure to comply with its duty to provide information, but From this information, the invalidity of the use of these images in cases of flagrant illegal conduct cannot be deduced. because the greater or lesser flagrancy of the conduct does not depend on the existence or not of a fact previously proven through that same measure.”

The Constitutional ruling was issued with a Individual vote openly opposed to the majority opinion of the court that, with respect to the interpretation of the guarantee that the right to data protection of workers entails the specific duty of information in this type of cases, concludes: “A standard has been configured that practically nullifies that guarantee due to the excessive extension given to the exceptional possibilities of its modulation in the event of flagrancy. We have the perception that, faced with the intention of the organic legislator to establish a fair balance between all the constitutional interests involved in this type of labor control measures, constitutional jurisprudence has not responded in this case to the level of the historical circumstances in that the development of the right to protection of personal data is faced with the challenge of the dizzying evolution of personal control technologies, leaving the protection of the right to protection of personal data unattended in an area of special sensitivity such as It is that of labor relations.”

The ruling, which will undoubtedly go down in history, has been commented on in a multitude of newspaper articles, and described as a clash of “pro-business” and “pro-worker” positions.

You can read more about this matter in the following press release from RTVE.