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Defensive employees’ monitoring: from the Italian legal cases

If the employer has the right to check the worker’s performance, the latter does not lose confidentiality margins for the sole fact of working in the company.


European Court of Human Rights

According to the European Court of Human Rights (ECtHR), the protection of private life also extends to the workplace as, especially in this context, relationships develop where the personality of the individual is expressed.

Considering that, in addition, the boundary line between the strictly private sphere and professional activity cannot always be clearly marked, the ECtHR considers that Article 8 of the ECHR, set up to protect private life, also applies to the workplace [V . Niemietz v. Germany, 16.12.1992 (rec. No. 13710/88), par. 29; Copland v. UK, 03.04.2007 (ref. No. 62617/00), par. 41; Bărbulescu v. Romania [GC], 5.9.2017 (ref. No. 61496/08), par. 70-73; Antović and Mirković v. Montenegro, 28.11. 2017 (ref. No. 70838/13), par. 41-42.]

Monitoring trough technical devices

This perspective is of particular relevance with regard to the processing of personal data carried out using information technology tools in the context of the employment relationship: fundamental rights and freedoms as well as the dignity of the worker must be respected  [Recommendation CM / Rec (2015) 5 of the Committee of Ministers to Member States on the processing of personal data in the employment context, point 3.].


E-mail and communication monitoring

The Working Group of art. 29 (WPArt29) – now substituted by the European Data Protection Board which brings together the representatives of all the supervisory authorities of the Member States – in the working document wp55 specified that «[t]he notion of “correspondence” includes not only letters in paper form but also others forms of electronic communications received at or originated from the workplace, such as telephone calls made from or received at business premises or e-mails received at or sent from the offices’ computers.» and that «the general principle of confidentiality of correspondence covers communications in the workplace», therefore also electronic mail and the files attached to it.

The ECtHR highlighted that in these cases the employee must have received prior information from his employer about the possibility of being monitored, the nature and extent of the control or the degree of intrusion into private life and correspondence; finally, that there are well-founded reasons justifying the adoption of such control measures and whether the employer could have used less intrusive measures.

Defensive monitoring

In Italy, the matter of employees’ monitoring is governed by a specific law of 1970 known as the “Workers’ Statute” (Statuto dei lavoratori) which prohibits the control of workers’ activity by means of technical devices. An exception is allowed for organizational, production, work safety or asset protection purposes but on condition that the monitoring is previously subject to an agreement with the trade union or administrative authorization.

The jurisprudence, then, has introduced the theory of the so-called “defensive monitoring” which can be carried out by the employer even without prior trade union agreement or authorization and even without the knowledge of the worker, in the event that there are justified suspicions of the commission of an offense by the employee. Even the defensive monitoring, however, must be less invasive as possible, respect the dignity of the worker and last for the time strictly necessary to discover the suspected offense.