Analysis of article 87 of the LOPDGDD: the use of digital devices by the worker, its control by the company and the devalued right to privacy

Abstract

The regulation of the use of digital devices by the employee at his work was a matter omitted in the labour legislation, and the generic rules about the power of control by the employer were applicable; however, the high litigation generated caused the national and community Courts to casuistically establish interpretative criteria in this specific area, not exempt from uncertainty, which clearly demanded greater legal certainty of the legal system to respond to the use of the new technologies as a consolidated socio-labor reality.

Because of that, at the end of 2018 the legislator promulgated a new regulation on data protection that came to introduce and regulate the new and so-called «digital labour rights», and one of them is the guarantee of the privacy of the worker against the regulation the use of digital devices at work and its business control. For this reason, this study analyzes the content of such right and its requirements, analyzing –with the experience of collective bargaining– the legal obligation to establish criteria on its professional or private use –the prohibition of the second is admissible–, the necessary intervention of the workers’ representatives, the information to each worker and the possible control procedures by the company, all of this to guarantee the respect for fundamental rights, even though the general rule based on this new regulation, which does not stop offering serious interpretative doubts, seems to legitimize a notable interference in the privacy of the worker.