The Spanish Constitutional Court has recently extended the right of Spanish companies to review their employees’ mails.

Traditionally, Spanish Courts accepted that companies may review their employees’ company e-mails, if they were previously informed, in written, that:

(i)           They were not allowed to use said mails for personal (not professional) purposes; and

(ii)          The company would review the e-mails and other correspondence.

The Spanish Constitutional Court has now allowed the companies to control the e-mails, without previously informing their employees.

1.- The Employee was informed that the company was controlling his e- mails

The Constitutional Court bases its Decision in the existence of a “Collective Bargaining Agreement”, with a Clause forbidding the “use of computers owned by the company for means other than complying with the working obligations”.

The Court considers this information to be enough. The employee could not have a reasonable expectation of confidentiality, when sending e-mails through the company’s computer’s accounts. Accordingly, the right of privacy in the communications has not been infringed, because there is not a “reasonable expectation” of confidentiality.

2.- Justified reasons to investigate

The case refers to the e-mails of an employee, suspected of committing acts of Unfair Competition. The company could reasonably think that he was preparing his departure from the company and he was going to work for the competition: transmitting confidential information and data. The Court states that controlling the e-mails was:

Justified. The company had “suspicions of an irregular activity of the employee”.

Suitable. Controlling the employee’s communications was necessary, to verify that he was really committing the suspicious activities: sending confidential information to third parties.

Necessary. The content of the e-mails was a clear evidence of the irregular activity of the employee.

3.- Investigating the company’s PC and telephone used by the employee

The company initiated its investigation, analysing the employee’s PC’s. The Constitutional Court argues that this was reasonable. And it was done with all guarantees: an independent specialized computer expert and a notary. The information obtained proved that the employee was transferring confidential information.

Later, the company investigated the employee’s professional cellular phone (owned by the company). However, this information could not be used by the company against the employee: the Collective Bargaining Agreement does not say anything about controlling the cellular phones. So, all the case was based on the information obtained in the computer.

4.- Evidence of unfair competition activity

The company could prove, through the PC, that the employee was leaking confidential information to a competitor; and he was expelled from the company. The Constitutional Court considers that this obtaining of information, and its use to expel the employee, was constitutionally acceptable, and was not infringing his right of privacy in communications.

The Constitutional Court argues that obtaining (and using) this information was constitutional. Because the employee should have known that the company’s employees had no right to use the company’s mails for their personal needs. And this was the case.

This Decision is very important, for many areas of Spanish Law, especially in Unfair Competition (Passing Off) cases. The companies frequently have to obtain evidence that the employee is preparing his transfer to the competition, sending confidential information via e-mail. And can be more easily controlled, from now on.

Santiago Nadal