Jusletter IT

Transparency and data protection in the workplace: the workers control by video surveillance

  • Author: Teresa Coelho Moreira
  • Category: Articles
  • Region: Portugal
  • Field of law: Data Protection
  • Collection: Tagungsband IRIS 2014
  • Citation: Teresa Coelho Moreira, Transparency and data protection in the workplace: the workers control by video surveillance, in: Jusletter IT 20 February 2014
Perhaps the most substantive issue raised by monitoring and surveillance in the workplace relates to the fundamental right to privacy and data protection of workers. And today, the possibilities for infringing on privacy in the workplace are greater than ever before like the use of video surveillance. But if overt and covert monitoring of the workplace using video surveillance cameras has been an issue for many years, nowadays video surveillance continues to be an issue which regularly leads to workplace disputes, particularly when cameras are installed without prior consultation or are used surreptitiously for employee performance monitoring or disciplinary purposes, violating the principle of transparency. In several key respects the use of surveillance cameras today poses greater concerns than in the past, when camera images would be monitored in real time or recorded on magnetic tape. These days, data from cameras is more likely to be in digital form, and as such can be stored on an indefinite basis along with other digitised data. Given this sort of development, it becomes even more important to ensure that the use of video surveillance is adequately controlled and respects all the principles of data protection. On the other hand, there is a big discussion around the issue of the possibility of covert video surveillance. In some countries it is not allowed but in many other countries there are cases related with Labour Law that accepted, in some cases, the covert surveillance uses against an employee, and the question is if it is possible to do that and what data protection principles should be respected.

Inhaltsverzeichnis

  • 1. Introduction
  • 2. The control by video surveillance in the workplace and the principle of transparency
  • 3. Conclusions
  • 4. References

1.

Introduction ^

[1]
The use of new information and communication technologies has made extensive employee monitoring and surveillance by employers inexpensive and easy and nowadays it is widespread and more and more organizations are monitoring their employees. And perhaps the most substantive issue raised by monitoring and surveillance in the workplace relates to the fundamental right to privacy for workers. As an EU report has put it, «Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace»1. In fact, privacy becomes even more important given that the traditional clear boundaries between work and personal time are increasingly becoming blurred through developments such as teleworking, flexible hours contracts, adaptability of working time and many other forms.
[2]

On the other hand, people expect to have some privacy at work, even if they are on their employer’s premises. At the same time, it is normal that working for someone will mean giving up some privacy. Employers have a legitimate interest to control the activities of employees while on working time and they need basic information about their employees for things like pay and benefits, and they have to be able to ensure that work is being done efficiently and safely2. But, they only can control those work related issues if they respect the rights of employees. And the monitoring of employees and their activities can be taken to a point where the employee suffers an unacceptable loss of privacy that will have an impact on his dignity and autonomy3.

2.

The control by video surveillance in the workplace and the principle of transparency ^

[3]

Today, there is a changing of the legal landscape of the right of the employer to control and monitor employees behavior and the possibilities for infringing on privacy in the workplace are greater than ever before. Employers are increasingly keeping track of employees via many forms of electronic means and can monitor and control virtually every aspect of an employee’s working time – from psychological tests to web-browsing records, video surveillance, keystroke monitoring, genetic testing, RFID, control of electronic communications and online social networks and global positioning systems, among others4. And if the employee monitoring is not new, the ability to monitor has become greatly expanded due to advances in technology5. So, it seems very important to protect personal data and privacy of individuals. And nowadays any content including personal data, be it in the form of texts or audiovisual materials, can instantly and permanently be made accessible in digital format worldwide. The internet has revolutionized our lives by removing technical and institutional barriers to dissemination and reception of information, and has created a platform for various information society services. These benefit consumers, undertakings and society at large6. But, at the same time, this has given rise to unprecedented cases in which a balance has to be struck between various fundamental rights, such as freedom of expression, freedom of information, on one hand, and protection of personal data and the privacy of individuals, on the other7.

[4]
As with other technologies, the main obstacle to the widespread implementations of video surveillance systems was the cost of it but, nowadays, the costs are falling steadily and the images can now be fed directly to the Internet. Employee monitoring can be done using minute surveillance cameras pointed directly at the selected host computer to monitor and record everything that is said and done by the employee on that specific host or it can be done by real time surveillance, including the use of Internet minute cameras that record and transmit real-time pictures over the Internet.
[5]
Today the amount of digitalised content available online has exploded. It can be easily accessed, consulted and disseminated through social media, as well as downloaded to various devices, such as tablet computers, smartphones and laptop computers.
[6]
Pointed this examples of new uses to video surveillance we can see how video surveillance continues to be an issue which regularly leads to workplace disputes, particularly when cameras are installed without prior consultation or are used surreptitiously for employee performance monitoring or disciplinary purposes. It seems to us that, sometimes, the real privacy threat lies not so much in the existence of the surveillance cameras themselves, even though that is bad enough, but how and where they are deployed and the question of transparency arise as also the issue of overt and covert monitoring of the workplace using video surveillance cameras.
[7]
In several key aspects the use of surveillance cameras today poses greater concerns than in the past, when camera images would be monitored in real time or recorded on magnetic tape8. In reality, these new technologies transformed the nature of data processing and surveillance. Until recently the surveillance of employees and the processing of their personal data was subject to physical limitations but, now, these new technologies make intensive surveillance practical.
[8]

These days data from cameras is more likely to be in digital form, and as such can be stored on an indefinite basis along with other digitised data. Potentially, for example, digitised data from surveillance cameras focused on individual employees could be linked to other digital data on that individual, for example HR data or data taken from email monitoring or recorded telephone conversations, forming a very powerful integrated set of information available to an employer9. And, at the same time that cameras are shrinking in size and cost, their capabilities are expanding10.

[9]
It is increasingly necessary in other words to see video surveillance not simply as a stand-alone security measure but as a source of data which is available for searching and analysis using the full power of contemporary computing. Given this sort of development, it becomes even more important to ensure that the use of video surveillance is adequately controlled. The specific features of the processing of personal information included in sound and image data have been expressly highlighted by Directive 95/46/EC, which refers to them expressly in several points and in Portugal by Law 67/98 that transposed this Directive, and articles 20 and 21 of Portuguese Labour Code.
[10]
The Directive ensures the protection of privacy and private life as well as the larger gamut of protection of personal data with regard to fundamental rights and freedoms of natural persons in article 1, No 1 and, one must not forget that a considerable portion of the information collected by means of video surveillance concerns identified and/or identifiable persons, who have been filmed and that the sound and the image are considered personal data.
[11]
In order to the video surveillance be legal the employer has to obey to several principles related all with the protection of personal data. The first principle is the legitimacy meaning that just data that is pertinent, necessary and appropriate should be collected for the lawful treatment of personal data. This principle comprises the truly fundamental and main principle of data protection11. The other principles are all related with this legitimacy principle because data should be appropriate, pertinent and not excessive in relation the legitimate purpose; the data should be exact, complete, accurate and precise in relation with that purpose; and data should only be conserved for the time and the needs of the initial purpose.
[12]

Another very important principle is the principle that data must be adequate and proportionate to the purposes. This principle means, in the first place, that CCTV and similar video surveillance equipment may only be deployed on a subsidiary basis, that is to say for purposes that actually justify recourse to such systems. The principle under which data must be adequate, relevant and not excessive entails careful assessment of the proportionality of the arrangements applying to the data processing once the lawfulness of the latter has been validated12. The filming arrangements will have to be taken into account in the first place, by having regard, in particular, to the following issues: the visual angle as related to the purposes sought the type of equipment used for filming, concrete installation arrangements, possibility of magnifying and/or zooming in images either at the time the latter are filmed or thereafter, it is necessary to consider the decision to be taken as to retention of images and retention period. This latter one has to be quite short and in line with the specific features of the individual case.

[13]

The last but not the least important principle that the employer has to respect is the principle of transparency that is directly connected with the problem of covert surveillance. Openness and appropriateness in the use of video surveillance equipment entail the provision of adequate information to data subjects pursuant to Articles 10 and 11 of the Directive and article 20, No 3 of Portuguese Labour Code. The employees along with other persons that visit the employer’s premises, should be aware of the fact that video surveillance is in operation, even where the latter is related to public events and shows or else to advertising activities and they should be informed in a detailed manner as to the places monitored. It is not necessary to specify the precise location of the surveillance equipment, but, nevertheless, the context of surveillance is to be clarified unambiguously and the information should be positioned at a reasonable distance from the places. Information must be given to employees and every other person working or visiting the premises. This should include the identity of the controller and the purpose of the surveillance and other information necessary to guarantee fair processing in respect of the data subject, for instance in which cases the recordings would be examined by the management of the company, the recording period and when the recording would be disclosed to the law enforcement authorities. However, the provision of information through a symbol cannot be considered as sufficient in the employment context. The Portuguese Labour Code in articles 20 and 21 stresses the importance of key data protection principles, including the proportionality of use and prior notification of those subject to surveillance. In the particular context of the workplace, it is important to highlight the safeguarding of employee’s «rights, freedoms and dignity». Surveillance should not include premises that either are reserved for employees’ private use or are not intended for the discharge of employment, and the images collected exclusively to safeguard property or detect, prevent and control serious offences should not be used to charge an employee with minor disciplinary breaches13. It is also important to highlight that employees should always be allowed to lodge their counterclaims by using the contents of the images collected14.

[14]
It is also important to remember that the employer cannot install video surveillance systems aimed directly at controlling, from a remote location, quality and amount of working activities, therefore entailing the processing of personal data in this context and that is clearly established in article 20, No 1 of Portuguese Labour Code.
[15]
The case is slightly different as regards video surveillance systems that are deployed, subject to appropriate safeguards, and occupational safety requirements and also entail distance monitoring, albeit indirectly. But, even in those cases, the employer cannot use as a prove the images to punish an employee if it is related with work performance but he can sometimes use it if it is a criminal offence, like theft or physical aggressions.
[16]

There is a big discussion around the issue of the possibility of covert video surveillance because it poses particular concerns and it is not admissible in Portugal and in many European Countries. In Portugal if the employer uses the images as a prove it is not going to be accepted in courts because it is considered a clear violation of article 20, No 3 of Portuguese Labour Code, and also of the principle of transparency and good faith15. However in some other countries there are cases related with Labour Law that accepted the covert surveillance uses against an employee and in some cases we agree with that when we are in the presence of extremely exceptional cases related with criminal offences where it is impossible to gather proves by other means not so intrusive. In German, for example, there are cases that accepted but only in under highly exceptional circumstances, when a concrete, documented16 criminal offence or other serious breach17 in connection with the employment is specifically suspected, if less drastic means to allay suspicion have been exhausted, the covert measure is practically the only means that remains, and the covert measure is overall proportionate18. But the processes, tools and methods necessary for this are to be selected and arranged by taking into account the representation of interests. In particular, it must be ensured that the covert measure takes place only for a pre-determined, and suitable period of time and the evaluation of the relevant data must be done by a third party who was not involved either in the decision-making to undertake a covert measure, nor in its implementation. If the concrete suspicion is not confirmed within the meaning of Section 2 Nr. 1, any data obtained through the covert measure must be immediately deleted19.

[17]
And to respect the data principles it is very important that the employees be informed about the general possibility to use covert measures for the control and surveillance of employees and the employees concerned must be informed about the concrete measures as soon as possible.

3.

Conclusions ^

[18]
The use of new information and communication technologies and especially new forms of video surveillance at the workplace have spread rapidly in recent years. This raises numerous issues for employers, employees and their representatives, especially in terms of the relationship between workers» privacy and employers» need to control. However one must not forget that even if with this new technologies it is technically possible to control almost everything and without the employee’s knowledge, legally that is not admissible and employer cannot, as a rule, control surreptitiously his employees because it is a clear violation of the principle of transparency essential to a good work environment and to respect the legal framework.

4.

References ^

Aimo, Mariapaola – «I ‹lavoratori di vetro›: regole di trattamento e meccanismi di tutela dei dati personali», in RGLPS, n. 1, 2002.

Bellavista, Alessandro – «I poteri dell’ imprenditore e la privacy del lavoratore», in DL, vol. 76, n. 3, 2002.

Bellavista, Alessandro – Il controllo sui lavoratori, Giappichelli Editore, Turim, 1995.

Cohen, Cynthia; Cohen, Murray – «On-duty and Off-duty: Employee Right to Privacy and Employer’s Right to Control in the Private Sector», in Employ Respons Rights J, Vol. 19, 2007.

Däubler, Wolfgang – Internet und Arbeitsrecht, 3.ª edição, Bund-Verlag, Frankfurt am Main, 2004.

Frederick S. Lane III – The Naked Employee – how technology is compromising workplace privacy, AMACOM, USA, 2003.

Gantt, II, Larry O. Natt – «An affront to human dignity: electronic mail monitoring in the private sector workplace», in Harvard Journal of Law & Technology, vol. 8, No. 2, 1995.

Gantt, II, Larry O. Natt – «Adressing the new hazards of the high technology workplace», in Harvard L. Rev., vol. 104, 1991.

Goñi Sein, José Luís – La Videovigilancia Empresarial y la Protección de Datos Personales, Thomson Civitas, Navarra, 2007.

Goñi Sein, José Luís – «Controles empresariales: geolocalización, correo electrónico, Internet, videovigilância y controles biométricos», in Justicia Laboral, No. 39, 2009.

Gragnoli, Enrico – «La prima applicazione della lege ‹sul trattamento dei dati personali› ed il rapporto di lavoro privato», in RCDP, n. 4, 1997.

Hendrickx, Frank – Protection of Workers Personal Data in the European Union, EU, 2002.

Hier, Sean, Walby, Kevin; Greenberg, Josh, «Supplementing panoptic paradigm: surveillance, moral governance and CCTV», in Theorizing Surveillance – The panopticon and beyond, (coordination David Lyon), Willan Publishing, London, 2008.

ILO – Protection of workers’ personal data, 1997.

Moreira, Teresa Coelho – A Privacidade dos Trabalhadores e as Novas Tecnologias de Informação e Comunicação: contributo para um estudo dos limites do poder de controlo electrónico do empregador, Almedina, Coimbra, 2010.

Raab, Charles D., and Mason, David – «Privacy, surveillance, trust and regulation: CCTV: identities, accounts and legal rulings», in Information, Communication & Society, vol. 7, No. 2, 2004.

Raffler, Andrea; Helliche, Peter, «Unter welchen Voraussetzungen ist die Überwachung von Arbeitnehmer-e-mails zulässig?», in NZA, No. 16, 1997.

Sadin, Éric – Surveillance Globale – enquête sur les nouvelles formes de controle, Climats, Éditions Flammarion, Paris, 2009.

Thibault Aranda, El control multimédia de la actividade laboral, Tirant lo Blanch, Valencia, 2006.

Town, Douglas; Cobb, Lorna – «Notes on: GPS Technology; Employee Monitoring Enters a New Era», in Labor Law Journal, 2012.

Wedde, Peter – «Heimliche Video-Uberwachung von Arbeitnehmern – zülassig?», in CF, No. 1, 2004.

Wilke, Matthias – «Videoüberwachung – Zwei Entscheidungen des Bundesarbeitsgerichts sorgen für Verwirrung», in AiB, No. 4, 2005.

 

Teresa Coelho Moreira

Professor, Member of Executive Committee of the Human Rights Center for Interdisciplinary Research

University of Minho, School of Law, Campus de Gualtar, 4710-057, Braga, PT

tmoreira@direito.uminho.pt

 

 

  1. 1 Frank Hendrickx, Protection of Workers Personal Data in the European Union, EU, 2002.
  2. 2 See Däubler, Internet und Arbeitsrecht, 3rd edition, Bund-Verlag, Frankfurt am Main, 2004, p. 122, and Andrea Raffler and Peter Helliche, «Unter welchen Voraussetzungen ist die Überwachung von Arbeitnehmer-e-mails zulässig?», in NZA, No. 16, 1997, p. 862.
  3. 3 Larry O. Natt Gantt, II, «An affront to human dignity: electronic mail monitoring in the private sector workplace», in Harvard Journal of Law & Technology, vol. 8, No. 2, 1995, p. 345, and «Adressing the new hazards of the high technology workplace», in Harvard L. Rev., vol. 104, 1991, p. 1898.
  4. 4 See Douglas Town and Lorna Cobb, «Notes on: GPS Technology; Employee Monitoring Enters a New Era», in Labor Law Journal, 2012, p. 203.
  5. 5 Cynthia Cohen and Murray Cohen, «On-duty and Off-duty: Employee Right to Privacy and Employer’s Right to Control in the Private Sector», in Employ Respons Rights J, Vol. 19, 2007, p. 236.
  6. 6 See for more information Teresa Coelho Moreira, A Privacidade dos Trabalhadores e as Novas Tecnologias de Informação e Comunicação: contributo para um estudo dos limites do poder de controlo electrónico do empregador, Almedina, Coimbra, 2010.
  7. 7 See Opinion of the Advocate-general Jaaskinen, case Google vs. AEPD, C-131/12, delivered 25th June 2013.
  8. 8 Vd. Charles D. Raab and David Mason, «Privacy, surveillance, trust and regulation: CCTV: identities, accounts and legal rulings», in Information, Communication & Society, vol. 7, No. 2, 2004, pp. 250–251, and Sean Hier, Kevin Walby and Josh Greenberg, «Supplementing panoptic paradigm: surveillance, moral governance and CCTV», in Theorizing Surveillance – The panopticon and beyond, (coordination DAVID LYON), Willan Publishing, London, 2008, pp. 230–231, and Éric Sadin, Surveillance Globale – enquête sur les nouvelles formes de controle, Climats, Éditions Flammarion, Paris, 2009, pp. 61–64.
  9. 9 With the same opinion Bellavista, Il controllo sui lavoratori, Giappichelli Editore, Turim, 1995, Thibault Aranda, El control multimédia de la actividade laboral, Tirant lo Blanch, Valencia, 2006, p. 18, and Goñi Sein, «Controles empresariales: geolocalización, correo electrónico, Internet, videovigilância y controles biométricos», in Justicia Laboral, No. 39, 2009, p. 42.
  10. 10 As Frederick S. Lane III, The Naked Employee – how technology is compromising workplace privacy, AMACOM, USA, 2003, p. 119, if in the nightmarish 1984, of George Orwell, perpetual surveillance was a given and the omnipresent telescreen was warning enough that you might be under the critical eye of the Tough Police, nowadays, if George Orwell were writing today he might felt different.
  11. 11 Bellavista, «I poteri dell’ imprenditore e la privacy del lavoratore», in DL, vol. 76, n.º 3, 2002, p. 152, Enrico Gragnoli, «La prima applicazione della lege ‹sul trattamento dei dati personali› ed il rapporto di lavoro privato», in RCDP, n.º 4, 1997, p. 703, and Mariapaola Aimo, «I ‹lavoratori di vetro›: regole di trattamento e meccanismi di tutela dei dati personali», in RGLPS, n.º 1, 2002, pp. 106–107.
  12. 12 See Teresa Coelho Moreira, op. cit., pp. 500–502, and Goñi Sein, La Videovigilancia Empresarial y la Protección de Datos Personales, Thomson Civitas, Navarra, 2007, p. 123.
  13. 13 This is one of the most frequently cases in courts: the use of the images to disciplinary and punish employees.
  14. 14 In Portugal we have cases where the employees asked to use as a prove the images in a litigation case, like the case of the Oporto Court of Appeal of 25th of January of 2012 and it was accepted that use by the employee.
  15. 15 The case of the Oporto Court of Appeal of 4th of January of 2013 was exactly about that and it was decided that if the employees don’t know that are being filmed, the prove is unlawfully and cannot be accepted.
  16. 16 The suspicion must be sufficiently concrete in personal, spatial and functional terms.
  17. 17 In § 32 section 1 sentence 2 of the Federal Data Protection Act the law governs only the prosecution of concrete suspicion («to detect criminal offences»). According to prevailing opinion, § 32 paragraph 1 sentence 1 of the Federal Data Protection Act serves as the legal basis for measures (usually suspicion independent) to prevent crimes related to the employment relationship (so-called anti-corruption measures). Purely preventive measures are subject to data protection implementation risks and should be carefully reviewed for their legal admissibility. It is strongly recommended to coordinate the further procedure with the relevant supervisory authorities and to make such dependent on their requirements.
  18. 18 See regarding video surveillance fundamentally BAG, NZA 2003, 1187, 1193 and Peter Wedde, «Heimliche Video-Uberwachung von Arbeitnehmern – zülassig?», in CF, No. 1, 2004, pp. 2–26, and Matthias Wilke, «Videoüberwachung – Zwei Entscheidungen des Bundesarbeitsgerichts sorgen für Verwirrung», in AiB, No. 4, 2005, pp. 225–228.
  19. 19 The ILO accepts the secret monitoring only if: (a) if it is in conformity with national legislation; or (b) if there is suspicion on reasonable grounds of criminal activity or other serious wrongdoing. See Protection of workers’ personal data, 1997, p. 10.