The Spanish Agency for Data Protection (AEPD), through a Proceedings Resolution dated April 11, 2012, has commented on the possible breach of the LOPD because of the existence of video surveillance cameras in the company where the complainant works. This is because one of the cameras focuses on the desk without consent. Additionally, there appears to be evidence that no file existed in the General Register of the AEPD.
After reviewing this case and the evidence the parties provided, the AEPD concludes that the complainant did indeed provide services as a worker in the company sued. Therefore, there existed an employment relationship linking him with the counterparty, which justifies the collection, transfer, and processing of the personal data subject of the lawsuit. Considering this situation, Article 6.2 of the LOPD applies not only to data of labour compliance but also to control over the security related to people or equipment of the entity.
Article 6 of the LOPD establishes that
- The processing of personal data requires the consent of the affected party unless the law provides otherwise
- It is not necessary to give permission when personal data is collected for the exercise of governmental functions within areas of competence when relating to parties of a contract or pre-contract of a business, employment, or administrative relationship and are necessary for maintenance or performance. This is true (1) when the processing of data is to protect a vital interest or (2) when the data is contained in publicly available sources and treatment is necessary to satisfy legitimate interests when pursued by the party responsible for the file or by a third party to whom the data is disclosed pursues the data. However, the parties seeking the information must not violate the rights and freedoms of the interested party whose data is sought
However, Article 20.3 of the Statute of Workers does require consent:
The employer may take any action it deems most appropriate for surveillance and monitoring to verify compliance by the worker of its obligations and duties, keeping in its adoption and application due regard for human dignity and taking into account the actual capacity of disabled workers, as appropriate.
Additionally, the present case examined, among other issues, the legitimacy of the company’s use of a video surveillance system for monitoring workers’ activities and considered whether workers received advance notice that this type of system could exist for job control.
This case established that the company has a video surveillance system and workers received notice of the purpose for which the company installed the cameras. Furthermore, this case also established that the above requirements were met and therefore was not a breach of the LOPD.
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