The Supreme Court upholds a one-year prison sentence for an employer who repeatedly accessed an employee’s private email address.

The Plenary Session of the Second Chamber of the Spanish Supreme Court unanimously passed a judgement – with its president, Manuel Marchena, presiding – confirming the conviction of a businessman for the crime of discovery and disclosure of secrets.

The judgment handed down unanimously by the Plenary of the Second Chamber of the SC – with its president Manuel Marchena acting as rapporteur – confirms the sentence of one year’s imprisonment for the offence of discovery and disclosure of secrets, with the mitigating circumstance of undue delay, against an employer who, in the search for evidence of disloyalty on which to base a claim for dismissal, repeatedly accessed the employee’s private email address. Some of the documents obtained in this way were presented in the dismissal action brought before the labour courts.

In his appeal, the accused alleged the possible existence of legitimate self-defence, as well as the inevitability of this access due to the technical configuration of the e-mail management programme. Both allegations were rejected by the Chamber: “…the accused did not legitimately exercise any right. Neither the shared use of corporate passwords, nor the definition in the collective agreement, as a serious disciplinary offence, of the use of the productive resources made available to the employee, are sufficient to legitimise the employer’s serious intrusion into JCZ’s private account. In fact, contrary to the defence version that access to those private accounts was practically unavoidable because of the functioning of the system, what the factum indicates is precisely the opposite. His conduct was not limited to this casual contact with what he did not want to know, but rather “…certain messages and e-mails sent or received between 11-3-13 and 26-6-13” were printed out, and the accused even ordered his daughter to continue collecting messages in order to “…gather all possible information about what had happened”. The Chamber adds that “…the long chronological parenthesis – almost three months – during which LMN was deprived of his right to privacy, to data protection and, in short, of his right to the virtual environment, speaks for itself of the intensity and scope of the interference”.

The judgment, in line with the case law of the ECHR and the Social Chamber of the Supreme Court, does not question the possibility of agreeing to reserve this capacity for monitoring: “…employer and employee can establish the terms of this control, agreeing to waive, not privacy, but the very inviolability of communications. And where there is an express agreement on monitoring, the expectation of privacy which, even in the workplace, accompanies any employee, will be excluded”.

But the waiver must meet certain conditions: “the exclusion of this expectation must be express and conscious, and a supposed waiver derived from the presumed will of the worker cannot be equated with this. A worker who is aware of the prohibition on using the computers made available to him by the company for private purposes and, despite this, fails to comply with that mandate, commits an infringement which will have to be sanctioned in the terms which are proper to the employment relationship. But that infringement does not deprive the worker who commits it of his right to define a circle of exclusion vis-à-vis third parties, including, of course, the person who provides him with those means of production. If we were to admit this artificial assimilation when deciding on the legitimacy of the interference, we would be forgetting the very nature of the contract of employment as an employee. The elements of availability of the fundamental right to privacy and inviolability of communications cannot be approached with a breach of the principle of proportionality. In fact, the effective validity of those rights of the worker cannot be made to depend exclusively on an unconditional cession agreement in which everything is seen as susceptible of being contractualised”.