Some cases have recently emerged in Spain in connection with certain doctrine set up by the Criminal Division of Spanish Supreme Court in its Judgment of 16 June 2014, defining the requirements for the monitoring, control and interception of e-mails received by employees in the corporate e-mail account in order to be furnished as evidence of a crime in criminal proceedings. The monitoring by the employer of e-mails received by employees in their corporate e-mail accounts has traditionally been the subject matter of labour case law in relation to employees’ dismissals. In such cases, the debate was whether or not an e-mail obtained by the employer by monitoring an employee’s corporate e-mail account was lawful, and whether it could be used as valid evidence to justify a fair dismissal. The Spanish Constitutional Court (Judgments No. 241/2012, dated 17 December 2012, and No. 170/2013, dated 7 October 2013) considers that an e-mail obtained through the employer’s monitoring is a lawful mean of evidence when:
- The personal use of the corporate e-mail account is forbidden;
- The employee has been warned that their e-communications through the corporate e-mail account could be subject to monitoring and control by the employer; and
- The monitoring and control are necessary, appropriate and proportionate (e.g. searching for key words and only where an employee is suspected of being in breach of their employment duties).The “casual discovery” of employees’ communications (i.e. discovery of e-mails without active monitoring or control being in place) is also found to be lawful.
The foregoing doctrine was also applied in criminal proceedings to determine the lawfulness of such communications as evidence of a criminal offence. Recently the Judgment of criminal division of the Spanish Supreme Court of 16 June 2014 has developed these requirements in relation to criminal proceedings and has established that the monitoring, control or interception by either the employer or the police of written communications that have not been read by the addressee needs prior judicial authorization to be used as evidence. However, in line with the jurisprudence of the Constitutional Court in labour cases, the Supreme Court has pointed out that it would not be necessary to have prior judicial authorization to monitor, control or intercept “traffic data” (e.g. websites visited by the employee using the corporate computer) and the communications already read by the employee. The ratione materiae of this dichotomy is that the Supreme Court understands that, when an employee has read a communication addressed to her/him, this communication is protected by the right to privacy (which is subject to the limits established by the Constitutional Court case law); while communications that have not been read by the employee are protected by the right to secrecy of communications (which has greater protection under the Spanish Constitution than the right to privacy). If this doctrine is confirmed, it could have a very relevant impact on internal investigations and labor procedures.