The right to disconnect in the organic Law 3/2018, of December 5, protection of personal data and guarantee of digital rights

Abstract

The recent approval of the organic Law on personal data protection implies the legal recognition of the right to digital disconnection of workers and public officials, an issue that has been part of the recent legal-labour debate, given the widespread use of technological devices, and its possible intrusion of the right to rest, private life or its harmful effects on health. The regulation sets out a new scenario for reflection that must begin with the very location of a right that, in its case, would demand treatment in a context of necessary reform of the flexible management of working time, more respectful of workers’ interests. The legal wording, indebted to that approved in France, gives a central role to collective negotiation, which must be in charge of defining «the modalities of exercise» of the right and, therefore, concrete measures, directly enforceable, to achieve the effectiveness of this basic right. However, and this is one of the failures of the aforementioned regulation, it would be advisable to link it with the preventive policy and its instruments. It will be the social agents in charge of giving content to the right, and laying the foundations for the internal policy to be developed by the company, with few legal requirements. These issues will occupy our attention on the basis of a scarce experience in negotiating where there is a lack of an adequate systematic location, an integral approach to the technological question, concrete measures and instruments, and a more active role for the worker.