Corporate monitoring by technological means in Spain: overview of substantive and procedural conceptual construction

Abstract

The incredible technological advances have found one of their most striking (and legally sensitive) manifestations in the resized capacity control by the employer regarding the provision of services performed by employees. Art. 20.3 of the Spanish Workers’ Statute (WS) designated to set the limits of action in this matter, only diffusely refers to human dignity, without the legislator proceeding to update a pre-informative precept. In this context, case law (both of the Constitutional Court and of the Supreme Court) has been responsible for assuming quasi-legislative work and proceeds to exaggerate the limits of corporate monitoring power when they collide (real or potential) with the nonspecific fundamental rights (to privacy – Art. 18.1 of the Spanish Constitution (SC) –, communications secrecy – Art. 18.3 SC – or to the informational self-determination – Art.18.4 SC –) of employees. The present article aims, based on the analysis of the doctrines used by the high national courts in statements, whether classic or recent (proportionality of corporate measure, expectation of privacy, and informational self-determination of the employee), to build a synthesis rule that allows us to better shape the limits of corporate monitoring power through the use of new technologies. Over time, the main procedural problems raised by this issue are discovered.