Corporate control of WhatsApp conversations and secrecy of communications

Comment to the Judgment of the Superior Court of Justice of Madrid no.  405/2023, of 8 June, rapporteur Maria del Carmen Prieto Fernández.

Subject matter: corporate control of WhatsApp conversations held by an employee on a corporate mobile phone. Scope of the fundamental right to secrecy of communications.

On 6th June 2023, the 4th Social Section of the High Court of Justice of Madrid ruled on the secrecy of communications in the use of social communication networks such as the well-known WhatsApp application via a corporate device.

The Judgement resolves an appeal brought by the defendant company – opposed by the adverse party – against the Judgment announced by the Social Court No. 2 of Móstoles.

The claimant worker was dismissed after her employer detected, by means of computer tools, irregularities in the management of the collection of customer orders. Specifically, the defendant company justified the dismissal on the basis of WhatsApp conversations held by the worker via the corporate telephone with an unidentified third party, probably a customer or an intermediary, relating to the collection of commissions, as well as the prices for the purchase and sale of products.

The 1st instance Judgment partially upheld the dismissal claim brought by the employee, considering the dismissal to be null and void, given the infringement of the fundamental right to secrecy of communications under article 18 of the Spanish Constitution. In particular, it considered that the WhatsApp conversations that led to the dismissal, despite being carried out in the workplace, were of a private nature and, therefore, the employer should not have access to their content. The main reason put forward by the Móstoles Court was that the company had not previously established the criteria for the use of the computer devices made available to the workers, nor had it warned of the control measures it would use to monitor the use made by the workers of those devices. The court of 1st instance considered the contractual clause providing for the employer’s ability to control and supervise the worker’s activity by telematic and computerised means to be insufficient, in so far as the worker had been hired to perform her duties in the form of teleworking.

On the other hand, the 4th Labour Division of the Madrid High Court of Justice partially upheld the appeal for judicial review brought by the defendant company. It considered that the recording of WhatsApp conversations should not be considered to infringe the fundamental rights to privacy and secrecy of communications.

The Court points out that the employment contract specified the computer and telematic equipment made available to the employee, including the mobile telephone, expressly stating that such “work equipment[s]” were made available to her for the use “determined by the employment contract“. Consequently, the High Court of Justice of Madrid underlines that, “on this premise, we can affirm that there is a provision for exclusive professional use“.

Ergo, following a proportionality test and in accordance with reiterated case law, the Court concludes that, with the control carried out by the appellant company over the employee’s communications, the dismissal could be considered unlawful – due to the lack of proof of the alleged labour infringements, despite admitting the WhatsApp messages as a valid source of evidence – but in no case null and void, given that in no way was the employee’s reasonable expectation of privacy or confidentiality breached, given that the company limited itself to reviewing WhatsApp conversations between the employee and clients or intermediaries, given that these cannot be considered strictly private in nature, nor can it be said that the company has harmed or compromised the plaintiff’s rights to privacy or the secrecy of her communications.

The aforementioned Judgment does not clarify whether the WhatsApp conversations held by the worker with third parties should be analyzed as the object of protection of the right to secrecy of communications (art. 18.3 EC) or whether, rather, they only deserve protection through the right to privacy (art. 18.1 EC).

The dispute is relevant since the standards of protection are substantially different depending on the fundamental right considered applicable. In this regard, there are precedents in which conversations held on WhatsApp are considered to be covered by the secrecy of communications (e.g., Judgment of the High Court of Justice of Galicia no. 3570/2019, 17/9/2019, p. King Eibe).

However, if it is considered that the fundamental right applicable in relation to WhatsApp conversations is indeed the one relating to secrecy in this regard, the reasoning followed by the High Court of Justice of Madrid is not in line with the doctrine established by the European Court of Human Rights in the well-known Judgment signed by the Grand Chamber in the Barbulescu case.

Let us hope that the Social Division of the Spanish Supreme Court or the Spanish Constitutional Court will soon establish a doctrine in this respect in order to enjoy legal certainty in an area of unquestionable practical importance.

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