The Data Protection Spanish Agency (AEPD), and the employment tribunals have give legal certainty to the use of video surveillance systems, and particularly to check the fulfillment of the labor duties. In this article we are going to present the current video surveillance’s legal framework.
The AEPD has carried out 365 proceedings during the 2.008 related to the video surveillance, what makes an increase of the 196 % in respect of the former year.
During the last months, the sanctions have affected particularly to the sectors of commerce, catering trade and private security services. Capturing images in the public sphere is one of the main causes of these sanctions.
The criterion of the AEPD and the employment tribunals to grant its permit to the location of video surveillance system is the proportionality. This principle suppose that these systems are utilizable when other precaution, protection or security measures, which would not require capturing images would be clearly useless or inefficient to the surveillance’s purposes (for instance: the installation of security devices or automatic doors, alarm systems, improvement of the public sphere’s lighting…)
The utilization of video surveillance systems in the labor environment:
The use of video cameras has generated controversy in the labor environment, because there are two opposed rights: the privacy right, stipulated in the article 18 of the Spanish Constitution and developed in the Law 1/1982 and the Worker Statute whose article 20.3 establishes that the employer may adopt the surveillance and control’s measures to check the worker’s fulfillment of its labor duties.
The courts in an outstanding Sentence established that a dismissal based on recordings captured by a non-declared video camera was granted. In this Sentence, the court clarified the case-law criterions of the Spanish Courts to use the video cameras in the labor environment.
In this case the employer contracted a private investigators agency because he suspected of the misconduct of his employees. The agency installed three cameras, which subsequently captured the recordings which constituted the dismissal’s proof. One employee impugned the recording proof because the employee’s knowledge or the judicial authorization of the video cameras using wasn’t executed in writing.
The tribunal based the dismissal’s approval in the following legal arguments:
a) There are no proofs of intrusion in the worker’s privacy because the cameras were installed in areas of the facilities which were not protected by the privacy right and with the only purpose of proving facts indemonstrable by other ways (Therefore, the intimacy and privacy rights are not infringed).
b) The Tribunal exposes that the privacy right is not an absolute right and the Worker’s Statute attributes to the employer the faculty of adopting the pertinent measures to check the worker’s fulfillment of its labor duties. It is also exposed that the constitutionality of any fundamental right’s restrictive measure depends on the proportionality’s judgment, whose requirements are fitness, necessity and proportionality in a strict sense.
c) The Tribunal argues in respect of the worker’s allegation of the infringement of the 1/2006 AEPD Instruction and the Data Processing law, because “the camera`s installation could not serve to its purpose if it is announced in the entry or a visible location of the facilities”.
Therefore, according to this Sentence the 1/2006 Instruction doesn’t suppose an impediment to the employer’s faculty of installing video surveillance devises to check the employee’s fulfillment of his duties, providing that this installation would not infringe the personnel’s privacy and its utilization would be proportional. Nevertheless, the employer may be fined by the AEPD because of not announcing the video camera’s installation and putting the pertinent signs.